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3 1223 03273 6507 

Francisco Public Library 

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f'f B 9 1998 



ROOM 113 


1:52 RM. 

341 -R 




ROOM 113 


1:52 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 

3 1223 03273 6507 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 





State Air Resources Board 


Trustees of the California State University 


California State Universities 

BOB GURIAN, Legislative Director 
California Faculty Association 

4 49383 SFPL: ECONO JRS 
75 SFPL 06/06/03 21 




Proceedings 1 

Governor ' s Appointees ; 


State Air Resources Board 1 

Background and Experience 1 

Questions by CHAIRMAN LOCKYER re: 

Gasoline Additives and Water Quality 

Versus Air Quality 2 

Effectiveness of Air Board 3 

Questions by SENATOR HUGHES re: 

Disproportionate Effect of Pollution on 

Minority and Low- income Communities 4 

ARB • s Plans Regarding Environmental 

Justice 4 

Greatest Frustration, and Goals on Board 5 

Questions by SENATOR LEWIS re: 

Initiative Proposing Annual Tax Credits 

for Certain Pollution Control Strategies 7 

Questions by SENATOR AYALA re: 

Federal vs. State Mandated Use of MTBE 7 

Issue of Diesel Exhaust 8 

Questions by CHAIRMAN LOCKYER re: 

Status of Approval of Ethanol 9 

Request to Respond to Staff Questions 10 

Motion to Confirm 10 

Committee Action 11 






Trustees of the California State University . . ., 11 

Background and Experience 11 

Questions by CHAIRMAN LOCKYER re: 

Toughest Issue and Greatest Achievement 11 

Questions by SENATOR AYALA re: 

Location of University of 

San Fernando Valley 12 

Questions by SENATOR HUGHES re: 

Position and Board's Position on 

Proposition 209 13 

Diversity at Graduate and Undergraduate 

Levels in Wake of Prop. 2 09 13 

Long-term Policy for Setting Student 

Fees in Future 14 

Technology Fees 15 


California State University System 15 

Different Fees at Individual Campuses 15 

Questions by CHAIRMAN LOCKYER re: 

Reflections on CETI 16 

Questions by SENATOR LEWIS re: 

Procedure for Selecting Private Sector 

Partners in CETI 18 

Any Major Complaints 18 

Questions by CHAIRMAN LOCKYER re: 

Plans to Close Gaps in Administrative, 
Classified and Faculty Salaries 19 

Lag in Executive Compensation 20 

Questions by SENATOR AYALA re: 

Financial Assistance for Students Who 

Cannot Afford Fees 22 

Different Fees for Graduate vs. 

Undergraduate Students 23 

Request by SENATOR HUGHES to Put 

Over Confirmation 23 

Request from CHAIRMAN LOCKYER regarding Plan to 

Address Salary Gaps 24 

Witness with Concerns: 

BOB GURIAN, Legislative Director 

California Faculty Association 24 

Statements by SENATOR HUGHES re: 

Possible CSU Recruitment of Retiring 
Legislators and Staff 26 

Need to Offer Decent Salaries 27 

Request by CHAIRMAN LOCKYER for Specificity on 

Plan to Address Faculty Salary Gap 28 

Termination of Proceedings 29 

Certificate of Reporter 30 

— ooOoo — 

CHAIRMAN LOCKYER: Do we have Mr. Parnell? It's 
nice to see you again. I haven't seen you since Fullerton. 
Good afternoon, sir. 

MR. PARNELL: Good afternoon. 

CHAIRMAN LOCKYER: Well, we want to hear from 
you. Have you got a prepared statement? 

MR. PARNELL: It's not necessary. 

CHAIRMAN LOCKYER: What do you want to do? 

MR. PARNELL: I appreciate. 

CHAIRMAN LOCKYER: Tell us about being a chemical 
engineer on the Air Board. 

MR. PARNELL: On the Air Board. I'm appreciative 
of your time. It's unusual for someone to come before you for 
confirmation who served for four years on the Air Board. In 
fact, when I called Nancy Michel to see what, if anything, I 
should be doing, she said, "You again?" 

CHAIRMAN LOCKYER: You've been appointed to a 
number of things in your life. 

MR. PARNELL: It appears as though I can't keep a 
job, Senator. 

But it is a pleasure, and I ' d be happy, in the 
interest of time, to take any questions that you might have. 

My agenda while serving those four years on the 
Air Board has simply been to achieve clean air in a common 
sense, in a flexible, in a cost effective manner. 

CHAIRMAN LOCKYER: Let me just inquire of 

1 Members, are there any specific questions that you'd wish to ask 

2 about? 

3 I guess it might be appropriate to hear you for a 

4 moment/ Mr. Parnell, on the general recent air quality fights 

5 that relate to gasoline additives? 

6 We seem to have heard that those that worry about 

7 water quality and those that worry about air quality maybe 

8 didn't talk to each other, and there was good air work-up, but 

9 not good water work-up, or something. What do you see from your 

10 perspective? 

11 MR. PARNELL: From my perspective, I think 

12 there's been a lot of misunderstanding. While it is true that 

13 they are finding traces of MTBE, which is the oxygen additive 

14 that petroleum processors have chosen to use, there's no mandate 

15 in California law for them to use MTBE, or oxygenates, for that 

16 matter, although this is the additive of choice. And they've 

17 spooled up their plants at the cost of $4-5 billion, we're told, 

18 in order to make MTBE available in the production of 

19 reformulated gasolines. 

20 While there is no mandate in California, there is 

21 a federal mandate that says that in nonattainment districts, 

22 nonattainment areas, they must use an oxygenate, but this has 

23 simply been a choice of the refiners to meet the mandates of 

24 reformulated fuel, both federally and statewide. 

25 CHAIRMAN LOCKYER: There seems to now be a shift, 
2 6 that maybe they're looking at alternatives. 

27 MR. PARNELL: Very definitely. There are other 

28 alternatives that can be looked at, and we've been very 

supportive on the Air. Board of further inquiry into whatever 
contamination and at what levels there may be in ambient air and 
in water. 

So, it's an issue that has to be dealt with and 
will be dealt with, I'm sure, as time goes along. There was 
legislation last year in your body that attempted to address the 
issue. It was signed into law. 

I think there's a lot more investigation that 
needs to take place and will take place. 

CHAIRMAN LOCKYER: Do you find that it's a good 
policy making and rule making forum? Do they seem to be 
conscientious, work together as a group in an effective way, and 
so on? 

MR. PARNELL: Yes, Senator. I have to say, I've 
been both at the state level and federally in agencies, and I 
have always been very quick to compliment the Air Board, its 
staff, and the basic forum and the mix of people that have come 
together. I think they do an admirable job. 

Clean air is a complicated issue, and we've done 
most of the easy things. Now we have a lot of difficult choices 
to make, and while we make those choices, we open up the forum 
to all interested parties. I think the Air Board particularly 
bends over backwards to see to it that the public in general are 
invited in to express their points of view, and we go to great 
lengths to make sure that stakeholders are attended to. 

So, I've been very complimentary of the process. 
I think the Air Board is fulfilling a very, very important role 
and will continue to do so. 

1 CHAIRMAN LOCKYER: Other questions? Senator 

2 Hughes then Senator Lewis. 

3 SENATOR HUGHES: Thank you very much for being 

4 with us today. 

5 Do you think the concern about the 

6 disproportionate effect of air pollution and other environmental 

7 hazards on minority and low-income communities is really 

8 justified? 

9 MR. PARNELL: Well, it's something that we hear a 

10 lot about, and there is investigation going on as we speak. 

11 There's been a notice of a proposed lawsuit in that area. 

12 And it's a difficult issue to really address, 

13 other than to listen to the parties that are involved, and to 

14 make certain that we don't disproportionately affect one 

15 economic group over another. 

16 I don't discount the importance of the issue. I 

17 just simply haven't had enough exposure to tell you definitively 

18 today. 

19 SENATOR HUGHES: For instance, in areas like 

2 mine, most people are driving older cars that have the potential 

21 of polluting the air, and they're not able to purchase cars that 

22 would be in a good condition, and consequently, they're impacted 

23 in a small area, and their children and their elderly are 

24 breathing this polluted air. So, it's almost predestined that 

25 they're going to have these kinds of circumstances. 

2 6 Well, what do you think the ARB is doing to 

27 better understand the dimensions of the environmental justice 

28 issue, and what specific programs, policies and actions that you 

would suggest that we utilize to address these concerns? 

MR. PARNELL: Well, there was' a piece of 
legislation. That debate ultimately will, and appropriately can 
be, was — in fact last year — addressed in some part by this 
body. And I think some of the issues that were brought forward 
in the debate last year went to the .issue of Smog Check, for 
example, on those older cars. If the costs of repairing them 
exceeded a certain amount, that they would be given a time frame 
of two years to basically do whatever is necessary to bring them 
up to standard. And if they fail on the second check, then, of 
course, action would have to be taken before registration. 

Those kinds of things are — have been put in 
place and were agreed to and signed into law basically to try to 
address some of that issue. 

SENATOR HUGHES: What has been your greatest 
frustration in serving on this Board, and what goals and 
objectives would you like to reach before your term is ended? 

MR. PARNELL: Well, I guess the greatest 
frustration is, everyone wants clean air, but as in the case of 
all complicated regulatory issues, most people want it at the 
expense of someone else. And we find that we have to do a 
balancing. We have to make sure that whatever we do is done in 
the common sense way. 

I don't mean to be throwing cliches, but I mean 
truly common sense. We've been, as you know. Senator, a 
technology- forcing agency. We've asked people to do things in 
response to better air that simply are technologically not a 
reality at this point, but putting the due date off to sometime 

1 in the future. So, we're technology- forcing, and to that 

2 extent, we have to be very common sense about when we come down 

3 to the crossroads of implementation, we have to be very 

4 sensitive whether or not what we've requested is in the realm of 

5 do-ability. 

6 You see, if you look at the record of the Air 

7 Board, it's been very conscious of those kinds of things. So, 

8 common sense and to be very flexible in the way we achieve clean 

9 air, which I think reformulated gasoline is a perfect example of 

10 that. We stated that we wanted gasoline to basically be 

11 formulated in a particular way to achieve clean air advantage, 

12 but we didn't dictate how the refiners were to do that. There's 

13 a great flexibility in how they achieve reformulated gasoline 

14 specs. 

15 We think that's certainly one thing that we have 

16 to do, and to make sure that the clean air comes in something 

17 that can be deemed to be affordable. There are a lot of 

18 proposals that simply the cost is too high. So, we have to 

19 continually weigh the economics against the clean air benefits, 

20 that our motivation at the Board is to be cognizant of both of 

21 those things, but our agenda is clearly clean air, and we go 

22 down that path very diligently, and I think, have demonstrated 
2 3 with the great improvement in air over the past number of years 

24 is basically testimony to how well it's been accomplished. 

25 We've made mistakes along with way. When we've 

26 made mistakes, we've backed up and recognized those mistakes and 

27 tried to go in a different direction. 

2 8 SENATOR HUGHES: Thank you. 

SENATOR LEWIS: Mr. Parnell, some of the 
environmental organizations are presently attempting to quality 
an initiative that would provide a couple hundred million-plus 
money in tax credits on an annual basis for certain pollution 
control strategies. 

Have you had a chance to review that initiative? 

MR. PARNELL: I really haven't reviewed that 
initiative. I'm really not prepared to comment. I'd be glad -- 

SENATOR LEWIS: My line of questioning was going 
to be on that, but since you haven't had an adequate chance to 
look into that yet, I'll just pass. 

SENATOR AYALA: I have a question. 


SENATOR AYALA: Mr. Parnell, I don't recall 
whether you informed me that MTBE was not a mandate of the 
Federal EPA to California. Is it a mandate? 

MR. PARNELL: No, it is not. The federal 
government mandate says that in certain nonattainment areas, 
that the fuel refiners need to use an oxygenate. MTBE is an 
oxygenate, and MTBE is the choice of the refiners, but there is 
no mandate for them to use MTBE. 

SENATOR AYALA: So, the refiners on their own 
added that? 

MR. PARNELL: That's correct. 

SENATOR AYALA: So, the only way you can stop it 
is through legislation, unless they stop it on their own. Why 
won't they do it? 

MR. PARNELL: I think they are. Senator. 


SENATOR AYALA: They are doing it? 

MR. PARNELL: I think that there have been recent 
requests of the Board. And I can't recall offhand, but I 
believe it was Tasco, one of the big refiners. I don't -- I 
think it was Tasco, but I'm unclear on that -- has made a 
request to the Board to forgo using MTBE in favor of something 
else. And there is great flexibility. 

SENATOR AYALA: They're moving in that direction? 

MR. PARNELL: Yes. I don't know what the end 
result will be; it's hard to predict, but certainly they're 
cognizant of water contamination or MTBEs being found in 
groundwater and certainly are trying to take corrective action. 

SENATOR AYALA: I understand that diesel exhaust 
has been declared an air contaminant. When will that issue come 
before the Board? It's been eight years since the last report 
was made. 

MR. PARNELL: The diesel exhaust is an issue of 
science, obviously, and we're hearing a lot of reports right 
now, and it's unclear as to where that will come down. I 
believe it's to be heard — help me — in late summer. Senator. 

Even if it's listed, I would hasten to say, even 
if it were listed as an air contaminant, there are a lot of 
things that are in regular issue on a regular basis that are 
listed. It doesn't necessarily mean that we would try to do 
away with diesel fuel. It is our transportation system today as 
we know it. 

But certainly there is a concern, so that 
investigation continues forward. 

SENATOR AYALA: I don't have any questions, 
Mr. Chairman. 

CHAIRMAN LOCKYER: Any other issues? 

I wanted to do ask quickly on ethanol. 

I should correct a comment. I have realized 
that/ while the slot or position you're appointed to includes 
meteorologists/ chemical engineers, and agriculturalists/ or 
lawyers, that the spot for you is not an engineer but an 
agriculturalist . 

MR. PARNELL: Agriculturalist. 

CHAIRMAN LOCKYER: And I wanted to make sure to 
correct that. In fact, your vita as an agriculturalist, of 
course/ is extraorderinary as Deputy Secretary for the whole 
country/ and active in numerous ways locally as well as in the 
state. You've had quite a career. 

Ethanol/ when the Chair was before us some months 
ago, there was a debate, a more active debate at the time, of 
what was the status of approvals, and there was some test 
leaked, or something that was happening. 

Does any of this ring a bell? Are you familiar 
with where your current workup on that — 

MR. PARNELL: My impression where it is 
currently, and I'm probably not as current as I should and could 
be if and when we get back to that issue, ethanol has been used 
from time to time as an oxygen in place of MTBE> but it has a 
NOx problem. When ethanol is burned, we basically increase NOx 
emissions, so there is a balancing that has to take place. 

There are certain people in the Midwest that 


1 continue to be excited about ethanol. 

2 CHAIRMAN LOCKYER: Mostly the people who grow 

3 corn. 

4 MR. PARNELL: Most people who grow corn. 

5 And it probably would be difficult to justify 

6 without tax treatment ethanol production. But that, I would 

7 have to be quick to say, that depending upon what happens in the 

8 future to MTBE, and how we're pushed to find other oxygenates, 

9 there may be fully fueled automobiles sometime in history using 

10 ethanol. 

11 CHAIRMAN LOCKYER: Would you, when you have an 

12 opportunity, drop me a note, perhaps, or from the Chair, 

13 whatever, with a little more detail in terms of — well, here 

14 are the questions that our staff workup includes. You might 

15 just respond to those for me, so that will give me a picture. 

16 MR. PARNELL: Okay, thank you very much. 

17 CHAIRMAN LOCKYER: Other questions from Members? 

18 Anyone present that wishes to comment, pro or con? 

19 SENATOR AYALA: I'll move. 

20 CHAIRMAN LOCKYER: We have a motion to recommend 

21 confirmation to the Floor. Call the roll on that, please. 

22 SECRETARY WEBB: Senator Ayala. 






Ayala Aye. Senator Brulte. 


Brulte Aye. Senator Hughes. 


Hughes Aye. Senator Lewis. 



SECRETARY WEBB: Lewis Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer Aye. Five to zero. 

CHAIRMAN LOCKYER: Thank you, sir. 

MR. PARNELL: Thank you very much. 

CHAIRMAN LOCKYER: Keep up the good work. 

MR. PARNELL: I'll try not to appear before you 
in the near future. 

CHAIRMAN LOCKYER: Well, it probably won't be me, 
but maybe some of these other persons. Thank you. 

Tony, come on up. Vitti is on the Trustees for 
the State University system. 

Do you want to start with any opening commentary? 

MR. VITTI: If you'd care to, I ' d be glad to give 
you a little background. 

Real quickly, I'm a lawyer. This is a 
reappointment to the Board of Trustees. I've already served 
eight years. 

CHAIRMAN LOCKYER: Have you served eight? 

MR. VITTI: Eight. Actually, I'm in my ninth 
year, and I certainly enjoyed serving. 

I served as Chair of the Board for two years. We 
have term limits also in that regard. 

CHAIRMAN LOCKYER: In eight years, what stands 
out in your mind as the toughest issue you had to grapple with, 
and the achievement or accomplishment that you would regard as 
the most significant? 


1 MR. VITTI : Easy, two words: money, survival. 

2 CHAIRMAN LOCKYER: The fact that you survived was 

3 the accomplishment? 

4 MR. VITTI: I think that was the accomplishment. 

5 Certainly during my administration as Chairman, we went through 

6 what I'm sure all of us consider the worst downturn that the 

7 state has ever gone through. And that telescoped out, 

8 obviously, to our budget as well. And it was a very trying 

9 time. 

10 As a Trustee, it was very difficult. As Chairman 

11 it was even more difficult, and as it was for our faculty, staff 

12 members and executive branch. 

13 So, I think that really stands out in my mind. 

14 I'm pleased to say is that we've survived it and 
1.5 certainly performing the mission of the University. And I'm 

16 proud of the fact that I had the opportunity to contribute 

17 during that period of time. Enjoyed it greatly, but it was a 

18 struggle. 

19 CHAIRMAN LOCKYER: Are there questions that 

20 Members want to pose? 

21 SENATOR AYALA: I'd like to ask, where is the 

22 University of San Fernando Valley located? 

23 MR. VITTI: Northridge. 


25 MR. VITTI: You mean San Fernando — 

2 6 SENATOR AYALA: It says here, the University of 

27 San Fernando Valley. 

28 MR. VITTI: Oh, you mean — it's a law school. 


It's now part of Laverne University Law School. It's a law 
school. It wasn't when I went there, which was 20-some odd 
years ago. It was in Sepulveda. 

SENATOR AYALA: I just wondered where it was. 

We had a long discussion earlier today, and I 
don't have any questions for Mr. Vitti. 


SENATOR HUGHES: What was your position, and what 
is the position of the Board of Trustees on Proposition 209? 

MR. VITTI: Well, I think I'd best answer that 
question by saying CSU is a university of access. Certainly 
that and maintaining quality are our two, I think, standards for 
the Board of Trustees and the system as a whole. 

In terms of the affirmative action issue, from a 
political standpoint, I wouldn't want the Board to be involved 
in it. I see it as a political issue. 

But we have not — I think our university is a 
school or a university of access, and I think that answers the 

Our concern is having the funds to fulfill that 
access issue, and that isn't always within our control. 

SENATOR HUGHES: In the wake of this proposition, 
how would you assess the diversity that you have now in terms of 
the graduate and undergraduate levels? How do you think the 
University can improve the diversity of its student body? 

MR. VITTI: I think I go back to the answer of 
the your last question by answering it the same way I answered 
the Chairman's question. That is, money. 


1 We are always living with the concern -- now, 

2 with tidal wave two, it's exacerbated certainly in the future -- 

3 but money is the issue. We can fulfill the mission if we have 
A the dollars to do it. 

5 SENATOR HUGHES: Are the Board of Trustees 

6 thinking about a long-term plan or policy for setting student 

7 fees in the future? And in your mind, what should be the 

8 overall goal of such a policy? For instance, af fordability, 

9 predictability, things like that. 

10 MR. VITTI: I think I speak for the Board pretty 

11 much by answering that with, if we are able to, fees would not 

12 be an issue. Fees would not be a question. Fees wouldn't be 

13 charged. 

14 But again, dealing with the issue of dollars to 

15 support the University, we in the past have had to increase 

16 fees. And it wasn't an issue treated lightly at all by the 

17 Board of Trustees, certainly not by me personally. It was very 

18 painful. 

19 And I think the sentiments of the Board are to 

20 avoid any increase in fees, provided it doesn't place the 

21 University in jeopardy of providing second-rate education. 

22 Access, again, and quality are the standards of this Board, 

23 very strongly guarded, and fees do get in the way of that 

24 access. 

25 We, to the extent we can obviate it, we make 
2 6 every attempt to do so. 

27 SENATOR HUGHES: I understand that there's 

28 something now called technology fees proposed by a few of the 































What do you think about this, and what's going to 

MR. VITTI: I assume — I'll defer to Karen here, 
but I assume this is technology fees for — 

SENATOR HUGHES: For the CETI proposal. 

MS. YELVERTON: Do you want me to answer the 



MR. VITTI: I'm not aware of any fees at this 


MS. YELVERTON: Two clarifications. 

In the CETI proposal, which is the public-private 
partnership that we're all discussing together, there's no 
proposal for a fee. In fact, we would argue that mitigates ever 
having to have that conversation. 

Second, we do have a campus-based fee policy that 
the Board has adopted that only allows a new fee with a vote of 
the students of the campus. So that is the new policy to ensure 
that there is a vote each and every time. If there's a proposal 
for something, the vote has to be taken by the students in the 
affirmative first. 

SENATOR HUGHES: So that an individual campus can 
make a decision that would not necessarily cover the other 

MR. VITTI: That is correct. 

SENATOR HUGHES: It would be on their own to do 


1 MS. YELVERTON: Correct. 

2 SENATOR HUGHES: Thank you. 

3 MR. VITTI: Thank you, Senator. 

4 CHAIRMAN LOCKYER: Other questions? 

5 Let's for a moment talk about CETI . Not the 

6 Search for Extraterrestial Intelligence, but the one you're more 

7 closely associated with. 

8 I guess the issues that I recall in this 

9 partnership discussion deal with whether there might be any 

10 student fee associated, or what costs might be borne by students 

11 as it's worked out, control of the partnership, evaluation of 

12 the productivity of the relationship, and then matters that 

13 relate to academic freedom, and campus governance, and the 

14 traditional respect for faculty involvement and student 
%5 involvement in decisions. 

16 Could you just maybe bring us up to date in your 

17 reflections on it? 

18 MR. VITTI: I can. 

19 Again, we are still being briefed on this issue. 

20 It's been put off to the March meeting for vote, so that allows 

21 more time for affected entities and parties to give us their 

22 input. So, it's a ways off in terms of voting, 

23 I'm not completely in tune with everything that's 

24 going on with respect to the issue. As a matter of fact, when 

25 Senator Hughes had mentioned the possibility of fees being 

2 6 charged, it caught me by surprise because I was never aware of 

27 even a possibility of that respect of fees being charged to 

28 students. I'm still not, and I was pleased to hear that it's 


not being considered. 

SENATOR HUGHES: As Legislators, we all live in 

MR. VITTI: Yes, well, I'm not a Legislator, but 
unfortunately I live in fear also. 

But basically, my understanding of CETI is that 
it's an infrastructure, a three hundred million-plus 
infrastructure that would be provided to the system, which is 
quite exciting as far as I'm concerned because it helps to take 
us into the 21st Century as a system. It is necessary in terms 
of education of future student bodies. 

And again, this is something that we will be 
fully briefed on. And before anyone votes on it, all of the 
issues that you have raised. Senator, will be addressed and will 
have to be answered satisfactorily to the Board before any 
commitment is made. 

CHAIRMAN LOCKYER: And you would think the Board 
would not be a rubber stamp of this sort of a policy matter. 
They'd want — 

MR. VITTI: I don't see this Board as being a 
rubber stamp for anything. 


MR. VITTI: That's not been my experience on this 

CHAIRMAN LOCKYER: Good. That's important, and 
we like them to be committed, obviously, to the program and kids 
and institution, and feel like they're independent and do the 
best job they can of dealing with that responsibility. 

1 SENATOR LEWIS: Just a quick question with regard 

2 to this CETI partnership. 

3 Can you tell me what was the procedure for 

4 picking, or how the private sector partners were brought into 

5 this? Was there an opportunity given to everybody to 

6 participate? 

7 MR. VITTI: Well, I believe it came in through 

8 the institute which has been newly formed in the last few years 

9 for the system. T^nd I'm not at all sure who approached who, and 

10 who the spark in the initiation of the negotiations was. 

11 T^d the only input I've gotten is general 

12 information and description of what the joint venture is 

13 attempting to accomplish and what the structure is. 

14 SENATOR LEWIS: Has there been any major 

\b complaints from anybody that felt left out from this kind of 

16 procedure? 

17 MR. VITTI: I have heard that there have been 

18 some requests to, you know, participate. And I can assure you 

19 that the Board will make every attempt for all of the 

20 constituencies involved to give their input on the issue. 

21 SENATOR LEWIS: Thank you. 

22 CHAIRMAN LOCKYER: Tony, I wanted to ask also 

23 about salary issues. The Vice Chancellor Mr. West, I think, 

24 when these matters were discussed last year in the budget 

25 context, indicated that there was forthcoming some sort of a 
2 6 plan to attempt to examine those areas where we've lagged 

27 significantly behind national norms. Faculty pay would be one. 

28 Perhaps some of the classified employees units, there's a claim 


that perhaps some of those are lagging behind. Whatever the 
facts may be in those respects, that there be a plan to address 
them over time. In the case of faculty, I guess we're getting 
close to in excess of 10 percent, maybe a 12-13 percent lag. 

Has there been a plan? I know we're changing -- 

MR. VITTI: We're in the throes of changing guard 
a bit. 

CHAIRMAN LOCKYER: — Chancellors. 

MR. VITTI: I would say that when I first joined 
the Board, that issue, the issue of faculty gap in salaries, and 
the issue of executive gap in salaries were foremost on 
everyone's list. But we, having hit the economic conditions 
that we hit, were unable to do anything about it. 

We've only recently, again, after eight years of 
my being on the Board of Trustees, were able to do something to 
fill the gap on the executive level. 

I can tell you from a personal standpoint, I am 
on the committee to examine the solution of the faculty gap 
issue, which obviously involves collective bargaining, the 
availability of funds. But we are talking about a significantly 
larger issue. We're talking about $110 million to fulfill that 
gap annually. It's not an one-time shot. It's every year. 

And we need the support of the Legislature in 
this regard. This is one of my goals. It was one of my goals 
in my first eight years, to bring executive compensation up to a 
level that was respectable. And it is my goal to do the same 
with faculty and at least play a role in bringing it along 
coming up with a plan. 


1 A plan would have to involve this building. So, 

2 a plan doesn't do us any good. It has to be a cooperative 

3 effort on the part of the Legislature, the Board of Trustees, 

4 and Governor. 

5 CHAIRMAN LOCKYER: Do you recall what the lag was 

6 in executive comp? 

7 MR. VITTI: Executive comp was approximately 30 

8 percent. The compensation lag on faculty, I believe, is about 

9 10 percent. 

10 CHAIRMAN LOCKYER: What did "it require in the way 

11 of ongoing expenditures to try to close the executive comp gap? 

12 MR. VITTI: I'm speaking off the top of my head, 

13 but I think it was about a million-seven. 

14 . MS. YELVERTON: I think it's even less than that. 
%5 MR. VITTI: A million-three, a million-two to 

16 fill that. 

17 And we were way behind and losing people. 

18 Keep in mind, once you lose them because of 

19 compensation, you end up having to raise the level for the next 

20 guy in order to get him. So, we're punishing ourselves and - 

21 punishing our people. 

22 And we have gained so much. I'm convinced that 
2 3 the policy making that this Board of Trustees has endeavored to 

24 take was responsible for our being able to hire Chancellor 

25 Reed. It's really advocated a position and a philosophy that 
2 6 has been well received in the academic world. I think it was 

27 real important for us to do it. 

28 We need to do it at the faculty level as well. 


and we request all the help we can get. 

CHAIRMAN LOCKYER: Obviously, if that's 100 times 
more expensive, or whatever, that may obviously be daunting. It 
sometimes is discouraging to have management move up, and the 
people that are there for the essential mission feel left 

If there were a plan in place to address it, it 
would feel — 

MR. VITTI: There is a committee in place that is 
endeavoring to come up with — I'm not sure we can call it a 
plan — but a program, and a mapping out, a procedure to get us 

But, you know, it's odd that my answer to every 
question has been money. 

CHAIRMAN LOCKYER: Well, and we understand that 
that's a fundamental reality. 

We try to get a feeling for people's philosophy 
and perspective. At least it helps to help have us understand 
these things. 

Senator Ayala. 

SENATOR AYALA: We discussed briefly the fee 
schedules that you have for the students. In 1990-91, it was 
780. By 1994, it had more than doubled. Now it went back a 
little bit this year. 

I don't like to see students refused entrance on 
the fact that they're not financially able to cope with the 
fees. If they have the means, fine. 

Shouldn't we have some kind of a program that. 


1 for those students that you can qualify as not being able to pay 

2 the entrance fee, be given jobs around the campus to make up the 

3 lack of the fact that they don't have the means? 

4 I don't think we should exclude people on the 

5 strength of financial disability. 

6 MR. VITTI: I wholely agree you, and this 

7 certainly was one of the issues. It's hard, perhaps, to 

8 believe, but raising fees $150-200 a year may seem like nothing 

9 to us, but you lose people, and you lose a significant number of 

10 people when you do that. 

11 There are — and I'm not an expert on the 

12 programs -- but there are programs, subsidy programs available, 

13 and provided certain economic conditions are met. 

14 One of the things that always concerned me was 
%5 the complexity of those programs and the application process. 

16 I wanted to see almost a credit card kind of availability to 

17 make it simpler for students to obtain the dollars if they 

18 couldn't afford it and met the requirements of the system. 

19 SENATOR AYALA: But you're not in favor of 

20 balancing the budget on the backs of students by raising the 

21 fees? 

22 MR. VITTI: No, but unfortunately the reality is, 

23 we needed to keep these universities in operation and had to 

24 raise fees at various levels. 

2 5 SENATOR AYALA: There must be other means where 

2 6 you could cut back, but you shouldn't exclude anyone, and you're 

27 doing that because of the fact that they can't afford the 

28 entrance fee. 


MR. VITTI: At that stage, we — and again, the 
Board, based on input we were getting, we were at the end of the 
line in terms of cutback. And we were starting to cut into the 
bone and couldn't go any further with it. 

At that point, with nothing else available, 
raised fees. 

We have also changed the culture of this system 
in terms of advancement in raising outside funds. Some of the 
new presidents we've brought in have been just expert in raising 
dollars and increasing the moneys that are raised from outside 
sources by a hundred times what they were previously. 

SENATOR AYALA: Do you treat graduate students in 
terms of fees the same as you do undergraduate students? 

MR. VITTI: No, it's different. Different 
pricing level. 

SENATOR AYALA: The ones going after their Master 
and Ph.D? 

MR. VITTI: Or a second degree, for that matter. 
Once you have a degree, you know, there are perpetual students 
out there. 

SENATOR AYALA: Thank you. 

MR. VITTI: Thank you, sir. 

CHAIRMAN LOCKYER: Senator Hughes. 

SENATOR HUGHES: At this time I'd like to ask 
that we put this over until next week. I still have some 
questions that need to be answered. 

CHAIRMAN LOCKYER: We do that as a courtesy if 
there's a Member that wishes a week's delay. 


1 SENATOR HUGHES: Not from you, but from someone 

2 else. 

3 CHAIRMAN LOCKYER: We'll schedule it for whatever 

4 time. I don't know that you'll need to make an appearance. I 

5 think perhaps there's some questions, especially at least what I 

6 heard, related to the plan, or development of one, that might 

7 address the salary gaps. If we could get some more information 

8 on that. 

9 MR. VITTI: Sure, be glad to. 

10 CHAIRMAN LOCKYER: And whatever else Senator 

11 Hughes had in mind, and we'll get back to it quickly. 

12 MR. VITTI: Very good. 

13 CHAIRMAN LOCKYER: Thank you. 

14 MR. VITTI: Thank you. Senator. 

%5 CHAIRMAN LOCKYER: Is there any testimony in 

16 support? 

17 MR. GURIAN: I'm Bob Gurian. I'm the Legislative 

18 Director for the California Faculty Association. 

19 I'm not in front of you today to speak for or 

20 against the confirmation of Trustee Vitti. I will say that 

21 Trustee Vitti has been one of the more engaged and more 

22 accessible of the Trustees. 
2 3 However — 

24 CHAIRM7\N LOCKYER: Who's the least? No, tell me 

25 privately. 

2 6 MR. GURIAN: I will say, however, that in our 

27 view, the Trustees have failed to protect the greatest asset 

28 that the California State University has, and that's the 



The faculty salary lag three years ago, I think 
it was -- my numbers may not be exactly right, but I think it 
was about 9.8 percent. Last year, it went up to 10.8 percent. 

Chancellor Munitz repeatedly over last year 
promised the development of a plan to close the CPEC salary lag. 
Now, CPEC, as you know, is the California Postsecondary 
Education Commission. What they do is, they compare the 
salaries of the CSU to 20 comparable institutions around the 
country. Now, we can get into a debate as to how comparable 
they are. Suffice it to say the position of the union has 
always been, it's something like 75 percent of the campuses in 
the CSU are in one of the ten highest cost of living counties in 
the United States. We only have one comparison institution that 
is in a similar position. 

Suffice to say that however -- 


MR. GURIAN: The University of Southern 

Having said that, last year Chancellor Munitz 
repeatedly promised the faculty that the CSU would develop a 
plan to close the faculty salary lag. Senior administrators in 
the CSU sat at this very table during budget deliberations and 
promised a plan. 

There is still no plan. 

This is not just a matter of money. How can I 
say that, because we all know there's been a really bad 
financial situation? 


1 Compare the CSU to the University of California. 

2 About three or four years ago, the lag in the UC was about the 

3 same as the lag in the CSU. The University of California 

4 adopted a plan and aggressively tried to deal with salary 

5 numbers for the UC faculty. The UC got same amount of support 

6 essentially as the CSU did. 

7 In fact, if you look this year's budget, in the 
Governor's Budget Summary document that they passed out on 

9 January 10th, in that document is the continuation of the UC 

10 plan to close the UC salary lag. In the CSU, as pointed out, 

11 there is no plan. 

12 We've also been told this year by a senior 

13 administrator in the CSU who is in a position to know, has told 

14 us that not only will there continue not to be a plan, but that 

15 the CSU has no plan to address the salary lag. 

16 SENATOR HUGHES: Well, you know, Mr. President, 

17 with the onset of term limits, I think they're really missing 

18 out on good recruitment from Legislators who will no longer be 

19 here, from staff people who might choose to leave and want to 

2 share their expertise and there insight into various areas, not 

21 only into political science, but there are many people who have 

22 expertise in other areas. 

23 So, they need not go on a nationwide hunt for 

24 people who are skilled and knowledgeable. So, if they're just 

25 going to leave it open to UC to recruit the cream of the crop, 

26 that's sad. 

27 And I would hope that you would urge your 

28 colleagues to strongly consider this, because you have people 


who are acquainted with the problems of California, who know 
about the expertise, know about the industries here in our 
state. And they could utilize this person power force. 

But if they don't offer decent salaries, nobody 
will ever even consider it. 

We should be getting some of these people 
attracted to the State University system. 

MR. CURIAM: In agreement with what Senator 
Hughes was saying, which is, perhaps, why we're so concerned 
about the salary lag, CPEC says that we're going to have the CSU 
share of the tidal wave two will be 100,000 additional students. 
In addition, we already know that the bulk of our faculty will 
be retiring within the next seven to ten years. 

We are not going to be able recruit quality 
faculty to come to the CSU to teach the next generation of 
students. And unless we hire quality faculty who are really at 
the top end of the knowledge scale, then our graduates are just 
not going to be very competitive going into California 
business. That will have a ripple effect all through 
California's competitiveness and the ability to compete in the 
job market and in the corporate market over next couple of 
generations . 

This is an enormous problem.. And unfortunately, 
we've not been able to get the Trustees to address the problem 
at all. And we come to you, as we will come to the Budget 
Committees during the course of the session, to try to get the 
CSU to become a little bit more responsible. 

Whatever you can do would be very helpful. 



Any other comment at all? 

Mr. Vitti, maybe you could help us know not so 
much the outcome, because it's obviously dependent on the 
Governor and the Legislature, and so on, in some of the funding 
questions, but if there's the potential for some specificity to 
the more general promise that Chancellor Munitz has made of 
having some plan that would address this, contingent, obviously, 
on funding. Maybe you could help us before we resume on knowing 
more about that. 

MR. VITTI: Sure. Senator, I can assure you that 
I'm on the committee. It's been formed. We are going forward 
with it. I give you that assurance. 

CHAIRMAN LOCKYER: Okay, give us a little more 
detail on it. 

MR. VITTI: Sure, I'll be glad to. 

CHAIRMAN LOCKYER: Thank you very much. 
Appreciate your appearance as usual, and your interest and 
commitment to making this a better system. 

How do you figure only 100,000? 

MR. VITTI: I thought it was 500,000. 

CHAIRMAN LOCKYER: I thought we were going to 
have a million in 2010 that can't get into college in 
California. I don't know how those divide between the three 
segments . 

MR. GURIAN: The CPEC number, I think — although 
I heard the Appropriations Committee said it different — but 
the CPEC number, I think, is 500,000, which CSU's share would be 































CHAIRMAN LOCKYER: Of that, all right, and that 
may be 2005 rather than 2010. 

Thank you, Tony. 

MR. VITTI: Thank you. 

[Thereupon. This portion of the 
Senate Rules Committee hearing was 
terminated at approximately 2:40 P.M.] 
— ooOoo-- 











I, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California, do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 
::^^5-^:^day of '^^~z:f€^^-rv-<''<^>^'^^^ , 1998. 

Shorthand Reporter 

341 -R 

Additional copies of this publication nnay be purchased for $3.00 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 341 -R when ordering. 


FEB 9 1998 






ROOM 113 


2:38 P.M. 





ROOM 113 


2:38 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 





California State Lottery Commission 



Department of Housing and Community Development 




Proceedings 1 

Governor's Appointees: 


California State Lottery Commission 1 

Questions by CHAIRMAN LOCKYER re: 

Hardest Thing So Far 1 

Questions by SENATOR AYALA re: 

Any Suggestions to Legislature 

to Improve Lottery 2 

Questions by SENATOR HUGHES re: 

Greatest Frustration 3 

Lottery Paying Money Up Front 4 

Questions by SENATOR LEWIS re: 

Possibility of Reducing Minimum Age 

to Purchase Lottery Tickets 4 


Motion to Confirm . . . 5 

Committee Action 5 


Department of Housing and Community Development 6 

Questions by CHAIRMAN LOCKYER re: 

Comment Period on Draft EIR 6 

Interaction with Technical Experts 6 

Motion to Confirm 6 

Committee Action 7 

Termination of Proceedings 7 

Certificate of Reporter 8 

— ooOoo-- 
CHAIRMAN LOCKYER: Gubernatorial appointees. Senator 
Beverly, nice to see you. We have a motion by Senator Lewis to 
confirm you. 

SENATOR LEWIS: Wait just a minute. 

SENATOR BEVERLY: It's a pleasure to be 

CHAIRMAN LOCKYER: Have you actually yet been to 
some of these meetings? 

SENATOR BEVERLY: Yes, I've been to eight or nine 

CHAIRMAN LOCKYER: Eight or nine. I'm delighted 
that in 1970, the Trail Lawyers honored you. 

SENATOR BEVERLY: The Trail Lawyers. 

CHAIRMAN LOCKYER: That's what your biography 
says . 

Want to tell us anything about this, what the 
hardest thing so far has been? 

SENATOR BEVERLY: Well, the hardest thing, I 
suppose the adoption of what we call the bridge project, which 
is a budget which cuts back on staffing and expense of the 
operation of the Lottery. We find, our study reveals we can do 
with less manpower, person power, than we have presently. I 
think it's going to be beneficial. 

CHAIRMAN LOCKYER: Are there questions from 
colleagues? Is there anyone here who would care to make a 

comment/ testify for or against the nomination? Senator Ayala. 

SENATOR AYALA: I'd like to say that I met with 
another gentleman who's also appointed. I was surprised when I 
asked him, do you have any ideas how we can improve the program 
itself? He said/ I'm not into that. 

I said/ how are we going to find out if you 
experts don't tell us what is taking place? He was reluctant to 
tell me hoW/ if anything/ we could do to improve the system. 

I don't know, but I thought maybe he would know 
since he's been a member for quite some time. 

I'll ask Bob/ what is it that you think needs to 
be done from the Legislature? 

SENATOR BEVERLY: I mentioned the probable excess 
of personnel. We are going to reduce staffing. 

The goal of the Lottery, of course, is to raise 
money for education. That's the primary goal, the one real 

We've taken some action since I've been there. I 
don't know if I can take credit for it, but it has been on my 
watch, our watch. We have increased the prize money payable for 
the Scratchers, and there's a direct ratio between the prize 
money and the sales of Lottery tickets. 

We have also adopted a policy of giving the 
winner of Big Super Lotto, the weekly Wednesday-Saturday Lotto, 
the option of taking the money up front rather than pass it out 
over 20 years. That should result in increased sales as well, 
according to studies we made of other states. 

SENATOR AYALA: I'm glad you're willing to talk 

about it, because the gentleman didn't feel that, as member, he 
should not be involved, and it should be done from within 
without bothering the Legislature. But if they don't do it, 
someone has to if there's something to be corrected, that is. 

I don't know. I'm not familiar with the 
operation at all. 

SENATOR BEVERLY: The relations between 
Legislature and the Lottery Commission have not been of the 
best, highest order over the years. We hope we can improve 

CHAIRMAN LOCKYER: We miss you. I want to just 
add that for the record. 


CHAIRMAN LOCKYER: Senator Hughes. 

SENATOR HUGHES: Congratulations or condolences. 
I don't know what to offer you. 

What is your greatest frustration now as you 
change your role as a legislator and you're on this Lottery 
Commission that everybody's been looking at with jaundiced 
eyes? What is your greatest frustration? 

SENATOR BEVERLY: I don't know that I have any. 
Two things continually amaze me. One, the public is still under 
the impression that the Lottery raises a great majority of 
funding for schools. It raises about two percent of the overall 
cost. That's all. It was over sold. 

And I was one who opposed the Lottery, by the 
way, when it was on the ballot, and probably most of us here in 
the Legislature did. 

The other point that's been raised, as I 
mentioned/ we are changing the policy so you can win the money 
up front. That's a point that's been raised. 

SENATOR HUGHES: Do you think that a lot of 
people will take advantage of that? And if they don't, does 
that put the Lottery Commission in a big bind in terms of 
raising the money and investing as you do now? 

Do you invest the money, and that's why you want 
to do it over a 20-year period? 

SENATOR BEVERLY: It shouldn't make any 

SENATOR HUGHES: It shouldn't? 

SENATOR BEVERLY: No, it won't be a problem, I 
don't think. They'll have the option of going either way. 


SENATOR LEWIS: Just one quick question. Bob. 

There's some the controversy or question as to 
whether or not the minimum age for being allowed to legally 
purchase Lottery tickets should be raised from 18 to 21. 

Do you have an opinion on that? 

SENATOR BEVERLY: I haven't heard anybody making 
that point. I haven't thought about it, frankly. I don't have 
a position. 

SENATOR MADDY: Mr. Chairman. 

CHAIRMAN LOCKYER: We'll note Senators Maddy and 
Foran as supporters. 

SENATOR MADDY: I'm sorry I wasn't down here, 
Mr. Chairman. 

I'm Senator Maddy from the 14th District. 

If there's anyway we can save this one -- 

CHAIRMAN LOCKYER: I'm trying to get done in 20 
minutes here. 

SENATOR MADDY: I just wanted to say, if we could 
put the matter out so we can have a chance to work the Floor. 

[Laughter. ] 

CHAIRMAN LOCKYER: We're ready to vote on it. 

SENATOR BEVERLY: I did not solicit any witnesses 
to appear here. 


CHAIRMAN LOCKYER: Call the roll. We have a 
motion from Senator Lewis. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Brulte. 


SECRETARY WEBB: Brulte Aye. Senator Hughes. 


SECRETARY WEBB: Hughes Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Lockyer. 


SECRETARY WEBB: Lockyer Aye. Five to zero. 

SENATOR BEVERLY: Thank you very much. 

CHAIRMAN LOCKYER: Mr. Mallory is our next 

Perhaps we can stay focused on the areas that we 

left off/ if we might, Mr. Mallory. 

MR. MALLORY: Yes, be happy to. 

CHAIRMAN LOCKYER: I guess one was the idea of 
having a comment period on whatever draft EIR is produced that 
would be a little bit more extensive. 

Have you had chance the check the law on that and 
see what might be possible? 

MR. MALLORY: Yes, I have. The law provides for 
a minimum of thirty days and a maximum of ninety days. Sixty 
days, which was suggested, is very reasonable, and I'd be happy 
to do that. 

CHAIRMAN LOCKYER: That's great. 

Then I think there was some desire to have some 
interaction with technical experts during the course of the 
workup. Can you accommodate those worries? 

MR. MALLORY: Yes, Senator. We've agreed to hold 
two public information meetings during the period in which we're 
pulling the draft EIR together, and I think that's acceptable. 


Are there other questions from Members? 

Senator Brulte, I think, was ready — 


CHAIRMAN LOCKYER: — to make a motion on the 

May I substitute the prior roll been then on the 
recommendation of Senator Brulte. 

[Thereupon the prior roll was 
substituted and the final vote 

was 5-0 for confirmation.] 
CHAIRMAN LOCKYER: Thank you, sir. Good luck. 
MR. MALLORY: Thank you, Senator. 
[Thereupon. This portion of the 
Senate Rules Committee hearing was 
terminated at approximately 3:46 P.M.] 
--ooOoo — 


1, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California, do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 
day of v^a4£.>y.t^<{^^»«gW^ 1998. 

:lyn j.^izj 

Shorthand Reporter 


Additional copies of this publication may be purchased for $3.00 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1 020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please Include Stock Number 342-R when ordering. 




M)- 3 

DOOMMs='**»"^«? '^^nj 

^^A FEB 3 1998 






ROOM 113 


2:45 P.M. 


Reported by 




ROOM 113 


2:45 P.M. 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 






California Transportation Commission 


State Board of Education 

BILL LUCIA, Executive Director 
State Board of Education 


Occupational Safety and Health Appeals Board 


State Water Resources Control Board 





Proceedings 1 

Governor ' s Appointees ; 


California Transportation Commission 1 

Introduction by SENATOR QUENTIN KOPP 1 

Opening Statement 2 

Questions by SENATOR AYALA re: 

Excessive 15 Percent Administrative 

Overhead at Caltrans 3 

Priority of Seismic Retrofitting 4 

Questions by SENATOR HUGHES re: 

Number of Caltrans Personnel 4 

Adequacy of Current Funding Sources 

to Meet Transportation Needs 5 

Contracting Out 6 

Questions by CHAIRMAN LOCKYER re: 

Definition of "Base" Regarding 

Contracting Out 10 

Fiscal Issue Associated with 

Contracting Out 11 

Mass Transit 12 

Priorities 12 

Motion to Confirm 14 

Committee Action 15 


State Board of Education 15 

Opening Statement 15 


Questions by CHAIRMAN LOCKYER re: 

^ Occasional Friction between Appointed 

Board and Elected State Superintendent 16 

Board Possibly Drifting into 

Administrative Matters Rather Than 

Establishing General Policy 17 























27 Questions by SENATOR HUGHES re: 

Adoption of Math and English 

Language Curriculum 18 

Questions by SENATOR BRULTE re: 

Passage of AB 602, Special Education 22 

Questions by SENATOR HUGHES re: 

Superintendent Eastin's Memorandum 

Listing Programs that May Be Discontinued 

under Proposition 209 23 

Update on Superintendent ' s Task Force 

on Programs Affected by Prop. 2 09 25 

Response by BILL LUCIA, Executive Director 

State Board of Education 26 

Role of State Board in Regard to 

Governor's List of Suspect Education 

Statutes 27 

Role of Board in Helping Students 

Prepare for Public Higher Education 27 

Raising High School Graduation 

Requirements 28 

Questions by CHAIRMAN LOCKYER re: 

Who Needs Algebra 29 

State Funding for Undocumented Students 31 

Questions by SENATOR LEWIS re: 

Opposition to Voucher Initiative 32 

Efficacy of Charter Schools and 

General Expansion of Such in California 33 


Exceptions to Cap on Charter Schools 34 

Evaluations on Charter Schools 34 

Response by MR. LUCIA 3 5 

Efficacy of Elementary Charter Schools 

Connected with Universities 37 

Response by MR. LUCIA 37 

Questions by CHAIRMAN LOCKYER re: 

Exemplary Charter Program or Very 

Unsuccessful Charter Program 38 

Response by MR. LUCIA 38 

Questions by SENATOR AYALA re: 

Responsibility of School District for 

Charter Schools 40 

Response by MR. LUCIA 40 

Response by MS. DRONENBURG 41 

Motion to Confirm 41 

Committee Action 43 


Occupational Safety and Health Appeals Board 43 

Introduction by SENATOR QUENTIN KOPP 43 

Background and experience 45 

Questions by SENATOR HUGHES re: 

Appeals Board Decreasing Level 

of Fines 48 

Enforcement of Health and Safety 

Standards for Farmworkers 50 

Questions by CHAIRMAN LOCKYER re: 

Reconsideration of Six Cases with 

Penalties for Violation of Field 

Sanitation Standards 52 

Possible Change in Direction on 

Field Sanitation Cases 54 




Questions by SENATOR AYALA re: 

Number of California Farms in Violation 

of Field Sanitation Laws 55 

Motion to Confirm 56 

Committee Action 56 


State Water Resources Control Board '. 56 

Introduction by SENATOR WILLIAM CRAVEN 56 

Background and Experience 59 

Questions by CHAIRMAN LOCKYER re: 

Toughest Issue 60 

Motion to Confirm 61 

Committee Action 61 

Termination of Proceedings 61 

Certificate of Reporter 62 

— ooOoo-- 

CHAIRMAN LOCKYER: We've been asked to 
accommodate a schedule problem for Mr. Wolf. I hope that 
doesn't create some difficulty for other appointees who are with 
us, but if we could start in that way. 

I believe. Senator Kopp, were you going to make 
an introduction? 

SENATOR KOPP: Yes, Mr. Chairman. 

CHAIRMAN LOCKYER: Mr. Wolf has been appointed to 
the California Transportation Commission. 

MR. WOLF: Good afternoon. 


SENATOR KOPP: Mr. Chairman and Members, this is 
a happy responsibility for me, presenting Robert Wolf to the 
Committee for recommendation to confirm his appointment to the 
California Transportation Commission. 

Mr. Wolf served with spirit and with as high an 
intensity of interest as anybody I've ever known in eleven 
years, or more than that, actually, before I was elected to the 
Legislature — 

CHAIRMAN LOCKYER: He served with spirits? 

SENATOR KOPP: With spirit, the kind that you and 
I are pursuing for the next couple of months, and may I 
compliment you on your elegant appearance. 


SENATOR KOPP: I strive to emulate you. 

SENATOR BRULTE: It's the hair. 

1 CHAIRMAN LOCKYER: I'm sorry if I've gotten us 

2 off the track here. 

3 SENATOR KOPP: But anyway, Bob Wolf is 

4 unsurpassed in his knowledge of the arcane subject of 

5 transportation financing. And we hope that it'll be a little 

6 less arcane and less complicated and difficult for people to 

7 understand who aren't among that small number who deal in 

8 transportation issues. 

9 That leads to a second point, we passed last 

10 year, and I think the commentators and the public at large are 

11 beginning to realize the momentous nature of SB 45. I don't 

12 make that statement because of pride of authorship, but because 

13 it has changed the entire decision-making process for 

14 transportation projects, and Mr. Wolf was an integral part of 

15 the promulgation of that measure and its various modifications 

16 over a two-year period. And, of course, he served in the 

17 capacity as the Undersecretary of Business, Transportation and 

18 Housing during the first of those two years, and then in 1997, 

19 was reappointed to the California Transportation Commission. 

20 And I just can't think of a better person to 

21 recommend for this particular responsibility than Mr. Wolf. I 

22 urge the Members of the Committee to recommend approval of his 
2 3 appointment. 

24 CHAIRMAN LOCKYER: Thank you. Senator. 

25 Did you want to begin with any opening comment at 

26 all? 

27 MR. WOLF: Mr. Chairman and Members, for the 

28 record, Robert Wolf. My thanks for that wonderful introduction 

by the Senator. 

I should just ask if there's any questions, and 
the other is to appreciate the accoimtiodating of the time. That's 
very kind of you. 

CHAIRMAN LOCKYER: Let me ask if there are 
questions that Members have. Senator Ayala. 

SENATOR AYALA: Currently we have the Caltrans 
with an overhead of 15 percent for administrative work. 

Do you think that's excessive to have 15 percent 
of a project go for administration? 

MR. WOLF: Mr. Chairman, Senator, to respond to 
that, one of the, I think, most important factors of SB 45, one 
that will lead to real — a real revolution in the way that we 
do administer the costs associated with what I'll call overhead 
in a general sense, is that for the first time it has to be 
arrayed in the public documents that go forward, that are put 
forward to the public through the Transportation Commission. 

So, by having these costs brought to sunshine and 
some determining factor as to what those costs are, and whether 
they are appropriate, for the very first time with this new 
legislation we will see exactly what they are, and for the first 
time, be able to get our arms around it and have some control 
over them. 

So, do I feel they're excessive? Very much so. 
Do I feel that we can address them? Only now can we start to 
address, given the new light that the legislation sheds upon the 

SENATOR AYALA: Do you think that seismic 

1 retrofitting should have a priority over new 

2 construction. 

3 MR. WOLF: Senator, I think the safety of the 

4 motoring public is the number one duty of the Department. And 

5 certainly, seismic retrofit is a major part of providing for the 

6 safety of the traveling public. 

7 I am personally delighted; the resolution that's 

8 embodied in SB 60 last year that came -- finally brought to 

9 closure how those are paid for. And I think it's now the duty 

10 of the Department to go forward and make sure that the motoring 

11 public is, indeed, safe, not only from those things that are 

12 evident in the everyday transportation world, but certainly from 

13 the possibilities brought forth by seismic events. 

14 SENATOR AYALA: So whatever we have, the public 

15 must be safe. 

16 MR. WOLF: Must be safe. 

17 SENATOR AYALA: Thank you. 

18 MR. WOLF: Thank you. Senator. 

19 CHAIRMAN LOCKYER: Other questions? Senator 

20 Hughes. 

21 SENATOR HUGHES: Mr. Wolf, how large is Caltrans? 

22 How many people, roughly, do you employ in this agency? 

23 MR. WOLF: Senator, just for total clarification, 

24 the Commission is the honest broker and is not the Board of 

25 Directors, if you will, of the Department. 

2 6 The Department, through its director, reports to 

27 the Secretary of Business, Transportation and Housing. And so, 

28 to say that the Commission employs anyone, they don't. 

But to answer the question as I understand it, I 
believe the current employment is about 17,000 employees. 


Do you think that our state can meet the 
transportation needs under exiting funding sources that we 

MR. WOLF: The answer is a complex one. Let me 
answer in this manner, that the Commission puts forth an annual 
report to the Legislature. And it has historically gone on 
record saying that to meet the needs, the total needs, of the 
transportation infrastructure of the State of California, the 
current funding sources are not adequate. 

Now, having said that, the current fund of money 
that's available right now has been building steadily for any 
number of reasons, and we can go into them. So, to go and to 
discuss this with the public at large about possibly bringing 
more funding sources or methodologies into play, while we have 
well over a billion-three sitting in our account, does not seem 
like a very good tact to say. 

Let me further say that again, SB 45 allows for 
money to be used in most appropriate manner. And that is to say 
that prior to the enacting of that legislation, we were asking 
the wrong questions for the wrong reasons. We were asking, how 
do we find a project that fits a certain funding source. 

The legislation has erased that, and what were 
nine sort of artificial pots of money are now two very clear 
pots of money, yours and ours, and we can ask the right 
questions, and that is, how do we most cost effectively and 

1 efficiently get people, goods and services from point A to 

2 point B. 

3 That mechanism alone goes a long way towards 

4 getting more value for the dollars we already have, and I think 

5 that's what business we're all in. 

6 SENATOR HUGHES: So, that is your plan for this 
1 coming legislative year? 

8 MR. WOLF: The Commission does not put forth 

9 legislation. The Commission comments on — 

10 SENATOR HUGHES: Suggests, and will that be your 

11 recommendation? 

12 MR. WOLF: As I understand it. Senator, we will 

13 make a strong recommendation that we adhere not only to the 

14 letter of the law, but certainly the principles embodied in 

15 SB 4 5, and that's get more bang for the buck. 

16 SENATOR HUGHES: In 1990, the trial court 

17 enjoined Caltrans for privately contracting out for engineering 

18 and inspection services. And the trial court found that 

19 Caltrans failed to show that these contracts were more cost 

20 effective or that state employees could not adequately perform 

21 this work. 

22 What are you recommending that Caltrans do, or 
2 3 what are they going to be doing about this situation? 

24 MR. WOLF: I think I can respond to the question, 

25 Senator. I think you're saying, how are we responding to the 

26 fact that what was anticipated to be contracted out, perhaps, in 

27 the Governor's budget is now going to be done by public 

28 employees. 

I think, again, that is not a Commission 
responsibility, but as I understand it, the Legislature has seen 
fit to convert a number of PYEs to PYs so that the Director 
could hire additional engineering support staff in the 
Department, and I believe the Director's hard at it. The courts 
have spoken, and I think the Director's responding 

SENATOR HUGHES: And you think that they're going 
to revise procedures to ensure that only work not adequately and 
competently done within Caltrans can be contracted out? 

MR. WOLF: I think that — and I can't speak for 
the Director, I wouldn't do that — but as I understand the 
Director's intent, it's to live up to the letter of the law as 
he understands it. He is required to hire public employees to 
perform many of the jobs anticipated early on to be done by 
contracting out. But I'm not speaking for the Director. 

SENATOR HUGHES: But are you fully in accord that 
this should be the direction that the Director should take? 
That's my question. 

MR. WOLF: If you're asking me personally — 

SENATOR HUGHES: Yes, personally. 

MR. WOLF: Personally, I, like everyone else, 
will live up to the letter of the law. And the courts have 
spoken, and as such, that's the direction that should be taken. 

Let me say that there are those that would 
characterize, if I may, Mr. Chairman, just expand on that, there 
are those that would characterize a belief in contracting out as 
to be ant i- government employees. 


1 Let me just characterize that a different way and 

2 say that it's with a concern for the future of the Department 

3 that many people are interested in contracting out certain parts 

4 of business. Let me explain that/ if I may, Senator. 

5 That is to say that when we look to bring young 

6 men and women into the public domain to work, we certainly can't 

7 offer them more money than they can get in the private sector, 

8 so what do we have to offer them? 

9 What we have to offer them is some certainty as 

10 to the ability, number one, to keep a job; and number two, to 

11 advance within the ranks to the extent that their abilities 

12 would allow them to do so. 

13 If we constantly hire and then lay off, and hire 

14 and lay off to meet the cyclical needs of the availability of 

15 funding for transportation, and in that arena only, then you've 

16 erased a lot of the benefits associated with public service. 

17 The alternative would be to establish a basal 

18 rate, if you will, of public service, where people could be 

19 certain of employment, be certain of the opportunity to advance 

20 within those ranks to the extent of their own personal 

21 abilities, and then take care of these oscillating amounts by 

22 contracting out. So, there are those who look at it in that 

23 direction as well. 

24 I personally look at it as, the courts have 

25 spoken, and we certainly have to be harmony with the courts. 
2 6 SENATOR HUGHES: Thank you. 

27 CHAIRMAN LOCKYER: Staying on this topic, if we 

28 may, and it's only because of our momentary experiences in 

previous years where these matters were before the Legislature 
that I stay focused in on the matter, at the time I think you 
had a responsibility to respond to the philosophy of your 
Governor, and you did that better than I would have preferred. 
So, I recognize your skillfulness there. 

I might also add that, as one who, during the 
last several months, spent considerable time in the Inland 
Empire, I note you have a lot of committed advocates in both 
public and private sectors in that part of the state that think, 
I believe correctly, that that part of the state is often 
neglected with respect to transportation planning. They 
appropriately feel that you'll be a voice where there often 
hasn't been one. I think the region is entitled to that 
representation . 

Let's stay for a moment, if I may, on the issue 
of contracting out, because while we obviously all are obligated 
to follow and obey the law, we also make changes in the law from 
time to time. 

I understand your basic philosophy of maintaining 
a pool of engineering services that's sufficient for the state, 
but perhaps to look to the private sector for peaks in demand on 
those services, or maybe some specialty work. I think that's a 
very commonly shared philosophy by Republicans and Democrats and 
Independents in the Legislature. 

Perhaps the problem is defining what's the base, 
and what's a specialty service that we don't have internally. 

Can you give any more specific detail of how you, 
if you were rewriting the law or just expressing a policy 


1 perspective, how would you define the base versus the peaks and 

2 specialties? 

3 MR. WOLF: Senator, first of all, thank you for 

4 your kind comments. One of the great joys of my time with the 

5 Governor's Office was the ability to interact with the Members 

6 of the Legislature. I truly enjoyed that and feel- that, 

7 although many understand the administrative side of it, that 

8 particular opportunity gave me a great opportunity to see the 

9 challenges facing the Legislature, so I enjoyed it very much. 

10 I don't know that I can give you a definition, 

11 but I do know that if we ever get to the point where the 

12 Director, whomever that may be, does not have the opportunity to 

13 offer career advancement, number one; some continuity of 

14 service, some certainty, number two; but even more, somewhat 

15 more ethereal, if you will, is the ability to work on good 

16 projects, because these are bright people coming out of school. 

17 If you're going to have them redesigning widgits, they're going 

18 to find employment somewhere else. So, you have to be able to 

19 provide those three opportunities within state government. 

20 To the extent that you can do that, I think 

21 you've met the goals. To the extent that you start contracting 

22 out where those three opportunities are not available, then that 

23 perhaps is detrimental. 

2 4 I don't know that I can define it. 

25 CHAIRMAN LOCKYER: That's an interesting way to 

2 6 frame the issue. And I would sort of emphasize the third — all 

27 three matter, of job security, and advancement, but I would 

28 emphasize the thrill of doing grand things. 


MR. WOLF: Creative outlet. 

CHAIRMAN LOCKYER: People have that, or 
potentially have that opportunity when they build a new Bay 
Bridge, or some challenges of that sort that may or may not be 
tasks for the Caltrans workers, at least as we currently 

Before moving on, do you have any tentative 
conclusions as to the fiscal issue associated with this debate? 
Is there any convincing or compelling evidence that it would be 
more or less expensive to contract out or to keep it inside? 

We've all seen studies after studies on this. 
Anything that you found persuasive? 

MR. WOLF: Mr. Chairman, as you just indicated, 
there are any number of studies. It's sort of, which way do you 
want it to come down, one could almost say if someone was 

I think if we can ever enter into a true debate, 
where we get all the true cost centers on the table, and we can 
compare apples to apples, I think we'll find that there are 
areas that the state can perform much better, and there are 
areas that, perhaps, private industry. So, if we can come to 
some closure on the fact that there may be a division of efforts 
that make some sense, then I think we can come to grips with the 
contracting out issue. 

CHAIRMAN LOCKYER: It's one of my 
disappointments, frankly, from the beginning of my tenure as Pro 
Tern, I offered to try to advance this discussion and haven't had 
any success. 


1 Mass transit, do you have any views that we 

2 should hear about those needs? 

3 MR. WOLF: I think, trying to set my thoughts to 

4 the venue, mass transit is a necessary aspect of public 

5 transportation in the broadest sense. We're never going to pave 

6 enough roads . 

7 Again, harkening back to the successful passage 

8 of SB 45, for the first time we will allow local decision-makers 

9 to mitigate their own land-use decisions and their own 

10 challenges by the most appropriate method. Instead of trying to 

11 force square pegs into round holes, if mass transit is the most 

12 appropriate solution to mitigate whatever 's going on, then they 

13 now have the ability to do that, where, in the past, they might 

14 not have had so. 

15 So, I have great hopes for mass transit under the 

16 broader envelope of SB 45 as projects come forward. 

17 When I say transit, it's not just trains, but 

18 rubber-tired transit vehicles. They used to be buses, Mr. 

19 Chairman, until I got into this business. Now they're 

20 rubber-tired transit vehicles. 

21 CHAIRMT^N LOCKYER: I guess there is some tension, 

22 as is common when there are too few resources to meet 

23 extraordinary demands. There's tension between new construction 

24 and rehabilitation, seismic retrofit, those sort of 

25 undertakings. 

2 6 Is there any clear priority in your mind? 

27 MR. WOLF: Absolutely. Senator Ayala pointed 

28 out, quite insightfully, that the number one responsibility is 


the protection and safety of the motoring public. That means 
those who are in transit vehicles as well. 

The Commission, I think with great foresight 
under the leadership of our past Chairman, mandated that the 
Department look forward to the next seven to ten years with a 
greater emphasis on rehabilitation and the maintaining of the 
integrity of that which we have already invested in. And the 
goal has gone from 15,000 lane miles of deferred maintenance, 
down to 5,000 lane miles of deferred maintenance. That is a 
major investment and a paradigm shift of no small consequence, 
to protect the integrity of that which we have already invested 
in. Some of our roadways — 

CHAIRMAN LOCKYER: Pardon me, it went from five 
to fifteen? 

MR. WOLF: It went from 15 [sic] lane miles of 
deferred maintenance to only 5,000. That is a major increase in 
resources directed at rehabilitation. 

CHAIRMAN LOCKYER: Out of how many lane miles? 

MR. WOLF: That's almost all of them, 15,000. 
Almost everything in the state is in need of some kind of 

CHAIRMAN LOCKYER: They're about 15,000 ~ 

MR. WOLF: Depending on how you count them. 

CHAIRMAN LOCKYER: And they're going to do 
two-thirds of it or so. 

MR. WOLF: We're going to get them back up so 
that we can maintain the integrity. 

CHAIRMAN LOCKYER: Does that include seismic? 


1 MR. WOLF: In addition, there's seismic work that 

2 has to be done. This is in addition to the seismic work that's 

3 scheduled. 

4 CHAIRMAN LOCKYER: And you consider that part of 

5 maintenance? 

6 MR. WOLF: No, I consider that as number one, 

7 safety, and then would come rehabilitation and maintenance of 

8 that which we've already invested in. 

9 Only after we've met these overarching goals is 

10 there money left over for capital investment in new projects. I 

11 think that's sort of the priority. 


13 Senator, you can conclude if there are other 

14 questions from Members. 

15 SENATOR AYALA: Move the confirmation. 

16 SENATOR BRULTE : Second. 

17 CHAIRMAN LOCKYER: We have a motion by Senator 

18 Ayala, and Senator Brulte seconds that motion. 

19 Please call the roll. 

2 SECRETARY WEBB: Senator Ayala. 








28 SECRETARY WEBB: Lewis Aye. Senator Lockyer. 

Ayala Aye. Senator Brulte. 


Brulte Aye. Senator Hughes. 


Hughes Aye. Senator Lewis. 



SECRETARY WEBB: Lockyer Aye. Five to zero. 

CHAIRMAN LOCKYER: Thank you, sir. 

MR. WOLF: Mr. Chairman, thank you very much for 
allowing me to come forward. 

CHAIRM7\N LOCKYER: Let's try to -go through our 
confirmation issues first, and then go back to referring bills, 
and holidays, and so on. 

Ms. Dronenburg is first on the list. Good 
afternoon. How are you today. 

MS. DRONENBURG: Fine, thank you. 

CHAIRMAN LOCKYER: Did you want to begin with 
some comments? 

MS. DRONENBURG: I know that you got started a 
little bit late, and that you have a lot on your agenda. 

CHAIRMAN LOCKYER: No, this is an important job 
you've got here, so let's hear from you. 

MS. DRONENBURG: I would very much appreciate 
being confirmed. I think that there is little of greater 
importance . 

I am Kathryn Dronenburg. I would appreciate your 
support of my confirmation. 

I have enjoyed the challenges facing our children 
in the past seven years that I've been on the State Board of 
Education, and I can think of little of greater importance than 
trying to assure that every single child in our state has a 
quality education. 

CHAIRMAN LOCKYER: We probably have some 


1 questions. Let me start with a general one. That is, the 

2 institutional structure and environment. 

3 Many people have made note of the fact that there 

4 seems to be occasional friction between an appointed board, the 

5 Governor that appoints them, the superintendent elected by the 

6 people. 

7 Do you have any personal observations on the best 

8 way to manage these tasks in California? Any thoughts from your 

9 personal experience that would help us think about the long-term 

10 restructuring, possibly restructuring, of those institutions? 

11 MS. DRONENBURG: Well, yes, I do. 

12 I feel that long term, it would probably be 

13 wisest for the Governor to appoint the Board and also the 

14 Superintendent, or for all of them to be elected. I think that 

15 it is a difficult dichotomy that we have now. 

16 But I do think that despite that fact, there are 

17 other states, not many, but others that do have our system. 

18 They have made it work. I believe that we are making what we do 

19 in this state work. 

2 The comments that I just made are comments that 

21 the current Superintendent also has supported. People realize 

22 that people vote for a Governor, they expect a Governor to have 
2 3 a vehicle for implementing education policy, and he needs or she 

24 needs to have that. But when they are electing a 

25 Superintendent, they also expect that person to implement 
2 6 reforms that may have been discussed. 

27 So, I think that it imposes a challenge under the 

28 current system when you have two sets of expectations for two 


separate elected positions. 

CHAIRMTVN LOCKYER: So, you would sort of appoint 
them all or elect them all as an alternative. 

MS. DRONENBURG: In other words, I still think 
there is — I think probably if you did not have an elected 
Superintendent, and you are nevertheless going to have an 
elected Governor, the Governor must have a vehicle for 
implementing policy and affecting education. 

How the position of the Superintendency is 
framed, and the duties that attend it, would have to be coupled 
with any discussion about change so that it was clear exactly 
why we were Instituting whatever changes. 

CHAIRMAN LOCKYER: In the last couple of years, 
there's been a number of instances when commentators thought 
that the State Board members were drifting .over into specific 
administrative matters, rather than establishing general 

Do you have any reaction based on your 
observations as to the validity or invalidity of those comments? 

MS. DRONENBURG: Well, lacking a specific 
instance, just to speak to the general idea, when the court did 
make its decision that the State Board of Education should be 
setting policy, in general there was also a rough guideline that 
had to do with the amounts of dollars that were involved in any 
specific issue. 

So, the larger issues, if you will, of policy for 
the whole state were to be delegated to the Board, but with 
respect to how those were carried out, the figure that I 


1 remember was around $10,000. Things that were less than that 

2 were to be considered discretionary, and those primarily had to 

3 do with things that would have already been identified in the 

4 budget/ which would already have had a lot of scrutiny and 

5 review. 

6 CHAIRMAN LOCKYER: Under ten -- 

1 MS. DRONENBURG: Would be discretionary at the 

8 Superintendent's level. 

9 CHAIRMAN LOCKYER: — with the Superintendent, 

10 and above that would require some Board act? 

11 MS. DRONENBURG: Uh-huh. 

12 CHAIRMAN LOCKYER: I guess to be maybe more 

13 specific, the issues that I heard worried about dealt with the 

14 adoption of math and English language curriculum, and the 

15 feeling that there was excessive involvement by individual Board 

16 members in developing the policy. 

1*7 Do you have any reaction to that? 

18 MS. DRONENBURG: Yes, I do; I sure do. 

19 First of all, with respect to the English 

2 language arts, I worked on the tiny little subcommittee for the 

21 Board that did look at any revisions that we felt the Board 

22 should consider. And there were really very few. 

23 One of the revisions we recommended I am quite 

24 proud of, and is one that has been recognized as having needed 

25 to be made. That was addition of several standards related to 

26 the fact that students really need to be able to read and write 

27 technical reports. That literature is certainly essential, and 

28 we want that for our students. Expository skills are important, 


but that the specific skills of technical writing needed to be 
added, so we did do that. 

My understanding is that the vast majority of 
Standards Commission members are pleased with the ultimate 
result of what the Board did with the English language arts 
standards. So that then brings us to the mathematics standards. 

CHAIRMAN LOCKYER: Was the Stand'ards Commission 
helpful and satisfied with the outcome in that instance? 

MS. DRONENBURG: That's what I'm given to 
understand, yes . 

Then with respect to mathematics, I think it's 
important to divide that into the kindergarten through seventh 
grade set of standards, and then the eighth grade through 
twelfth grade standard. 

With respect to the kindergarten through seventh 
grade standards, it is my understanding that our ultimate 
adoption of those satisfied pretty much every one. There had 
been some misunderstandings at first because of the fact that 
the Board was very mindful of the fact, and in fact, the 
Standards Commission staff itself made clear to us when we went 
through the process in the English language art standards 
development, that it was crucial that standards be measureable, 
that they be assessible. That's what the legislation said. And 
there were some verbs in those standards that were along the 
lines of create. 

Well, you can't assess that kind of a thing, so 
we did change some of the language. 

But another thing that we're alleged to have done 


1 sometimes in the press, namely to eliminate the skill of 

2 estimation, is just not true. We thought it was very important, 

3 but we just put that all together rather than having it as a 

4 verb in a number of standards. We consolidated that. 

5 With respect to that kind of thing, I think, is 

6 why we ultimately didn't seem to have a disagreement over the 

7 kindergarten through seventh grade standards. 

8 That brings us then to the high school standards, 

9 including eighth grade. There the major dilemma was over two 

10 issues. First of all, all of the standards as they originally 

11 had come had included with them examples. There had been no 

12 examples with the English language arts standards, and it was 

13 our feeling as a Board that while we understood the fervor of 

14 Standards Commission members wanting to really get their point 

15 across, we as Board members nevertheless realize that the 

16 standards, while extremely important, are only one piece of the 

17 puzzle that goes out to local school districts. 

18 Another extremely important piece of that puzzle 

19 is the mathematics framework. And in any subject matter, the 

20 framework. We felt that that is the more appropriate place to 

21 be discussing education strategy and examples, and how to teach 

22 the standards. That the standards are to be content that is to 

23 be mastered by the students. 

24 So, the first thing that we did that seemed to be 

25 controversial was to remove the examples, which — there had 

26 been no examples with English language arts. 

27 The second thing we did was face a dilemma with 

28 respect to the formatting of the standards. You may be aware 


that there is a split among mathematicians and educators, and 
now many parents, with respect to how best to teach 
mathematics. And the two essential points of view are that what 
you teach children should be integrated, or -- and that's the 
newer, more innovative way — or should be in a traditional 
approach where you teach all of algebra, then the next year all 
of geometry, and so forth. 

The way that the standards arrived for us from 
the Standards Commission was an integrated approach. That was 
the formatting of them. 

The problem for the Board is that although we 
asked for, we never did receive, and in fact we were told that 
there is no research — current, confirmed, replicable research 
— to push that strategy as more effective than the traditional 
strategy. Every place we have looked, we have come up with the 
fact that there is no research to push one strategy over the 

So, not only did we not want to push that 
strategy of the integration, neither did we want to push a 
strategy that was traditional in approach. 

The format that came to us, as I said, was an 
integrated approach. If we had identified all of those 
standards and formatted them in the way most courses are taught 
in high schools now, we would have been rightly accused of 
favoring the traditional approach or strategy. So, what to do. 

What we decided to do was to format the content 
of those standards in a disciplined approach and basically say, 
when children learn algebra, these are all of the elements they 


1 must cover. When they're learning geometry, these are all of 

2 the elements that must be covered, and trigonometry and so 

3 forth. 

4 That gives the latitude to every single district 

5 in our state to say, if we want to use the integrated approach, 

6 we will take as many of the algebra standards, and. as many of 

7 the geometry standards as we wish for a given year, and we will 

8 cover those. Ultimately, our children will have covered all of 


9 the things. 

10 If we choose to do the traditional approach, then 

11 we'll do all of the geometry in the ninth grade, or rather, the 

12 tenth grade. 

13 That latitude is there because of our decision to 

14 follow that different format. Following that format of a 

15 disciplined approach, though, made the standards look different 

16 than when they came to us. And I think that that is the heart 

17 of the some of the concern that's been expressed, and that is 

18 the reason, from my point of view, why we did what we did. 

19 CHAIRMAN LOCKYER: Other questions on this 

20 issue? Anything else? Senator Brulte. 

21 SENATOR BRULTE: Last year, the Legislature 

22 enacted and passed legislation, I believe it was AB 602 on 

23 special education. Did you play a role in that at all? 

24 MS. DRONENBURG: Yes, I did. I was very pleased 

25 when that legislation was passed. 

2 6 I believe very strongly that — and because I 

27 have a child who is disabled, I understand that the needs of 

28 children with disabilities are so different, one from the other. 


it is extremely difficult to categorize them. And the previous 
funding model, while a big improvement over funding models 
before it, nevertheless forced districts to create programs and 
then try to put children into those programs. 

The new model, if we're diligent and careful with 
it, I believe will really give us a chance to meet the 
individual needs of students. That, to me, is the whole point 
of a quality education for those students. 

CHAIRMAN LOCKYER: Are there other questions from 
Members of the Committee? Senator Hughes, please. 

SENATOR HUGHES: I understand, Ms. Dronenburg, 
that Delaine Eastin issued a memorandum regarding certain things 
that were going to be implemented or discontinued under 
Proposition 209. 

How do you feel about this laundry list of 
programs that she sent you that you needed to look at? How did 
you feel about her communication? 

MS. DRONENBURG: Could you refresh my memory? I 
don't have that in front of me. 

SENATOR HUGHES: Well, after the passage of 209, 
the Superintendent issued a memo to the districts and to the 
county superintendents informing them about the measure, 
indicating that the measure's legal question still needed to be 
clarified. And listed an among those were a group of programs. 
It's a whole laundry list of programs. I don't want to go 
through every one of them, but this is an example of some of the 
things that she talked about that might be in jeopardy under 


1 One was Indian Center, Indian Education Centers, 

2 Latino Heritage Resource Centers, Social Tolerance Resource 

3 Centers, Single Gender Academies Pilot Programs, the MESA 

4 Program, the school district's affirmative action employment 

5 programs, employees advisory groups based on sex, race, 

6 ethnicity, and national origin. 

7 How did you feel when all of these lists of 

8 programs were listed as being in jeopardy or under question 

9 under the implementation of 209? That's just an example of this 

10 laundry list of things that was indicated in the memo. 

11 MS. DRONENBURG: Well, my basic recollection of 

12 that whole period of time was, first of all, that we were going 

13 to have to deal with the change. We were going to have to deal 

14 with what the courts where going to say about that change 

15 because we knew there would be court challenges. 

16 But I think what you're getting at is with 

17 respect to her particular actions to try to deal with the 

18 issue. That is how I saw what she was trying to do, was do what 

19 she felt was a way of informing people of things that she 

20 thought really might have been in jeopardy. 

21 My feeling in general on those kinds of things is 

22 that alerting people to fear is a very — it's a very serious 

23 thing to do. You need to couple that also with the fact that 

24 there may be ways to preserve those programs. In other words, 

25 not to cause people to be fearful without giving them avenues 

26 for solving problems. 

27 This was also sufficiently long ago that it was 

28 before the State Board of Education had in place its staff, 


which we now have in place. And it has taken a year-and-a-half 
for us to get our tiny little staff in addition to the 
Department serving as our staff. 

One of the advantages to our having a staff, 
given that the court has said that the Board is changed with 
policy making, is that it gives a chance for the Superintendent, 
and the Board, and Board's staff to discuss a lot of these 
things, and to look at the ramifications of communiques that go 
out, to clarify from whom they're coming, and exactly what it 
means to a district when it gets that kind of information, what 
is it supposed to do about it, and what might all of the 
alternatives be. 

SENATOR HUGHES: As a consequence to that 
memorandum, she formed — this is Superintendent Eastin — a 
task force that was going to address itself to these issues and 
report back in 30 days. 

Have you gotten any update on what that 30-day 
report was? Maybe it's unfair for me to ask you that question, 
but I'm really curious as to what the Board has learned about 
the work that was being done, and delighted to know that your 
staff and the Superintendent's staff is working together. 

MS. DRONENBURG: I can appreciate you wanting to 
know about that. We do have staff from our board here. They 
have assured me that any questions any of you ask that I was 
unable to answer, they would get information for me to give to 
you, or give directly to you, so that you can be fully aware of 
all of that. 

SENATOR HUGHES: I'd like to know what progress 


1 has been made, if any, in that regard, because you did make a 

2 statement about, you know, it's kind of frightening to find out 

3 that all of these programs might be in jeopardy. It really 

4 concerns me, and I'd like to know what is highest on your 

5 priority list, or lowest on your priority list for eradicating 

6 things like this. That's what I'm really aiming at. 

1 MR. LUCIA: Senator, my name is Bill Lucia, the 

8 Executive Director of the State Board. 

9 My understanding is that the current status of 

10 that effort has been shifted to the legal office of the 

11 Department under the direction of Delaine Eastin, the State 

12 Superintendent. And that they're re-reviewing that list, if you 

13 will, to determine, based on the latest decision with 

14 Proposition 209, in terms of what really truly would be in 

15 jeopardy. 

16 It's not a clearcut case, in fact, that any 

17 particular one of those programs are in fact in jeopardy. I 

18 understand not only is the Superintendent yet to develop her own 

19 list based on her legal office's work, but that they have not 

20 yet approached the Board's staff and the Board's staff counsel 

21 as to whether or not they believe that any of those programs are 

22 clearly in jeopardy on their face. 

23 As you know, any of the programs that are listed 

24 on that chart that have to do with existing litigation or 

25 consent decrees are actually explicitly precluded from being 

26 subject to the direct constitutional requirements of Proposition 

27 209. 

28 SENATOR HUGHES: So, those programs are probably 


less in jeopardy because the legal question is still out on 

MR. LUCIA: That's a fair enough statement to 
say/ yes. 

SENATOR HUGHES: In the case of Proposition 209, 
I'd like to know what you feel, Ms. Dronenburg, about the role 
of the State Board of Education should be in regard to the 
Governor's list of suspect education statutes issued last 

MS. DRONENBURG: Suspect education list? 

SENATOR HUGHES: Statues issued last September. 
Do you know what they are? 

MS. DRONENBURG: No, I don't. 

SENATOR HUGHES: Are you going to find out what 
they are and let me know? I'd really be curious to know what 
suspect list this is. I have no idea. 

MS. DRONENBURG: Nor do I, but I will try to find 

SENATOR HUGHES: What do you feel the role of the 
State Board of Education is with public higher education 
segments in helping students to prepare for admission to higher 
education? Do you think that the State Board has a role? 

If they don't have a role, should they have a 
role? How do you feel about that? 

MS. DRONENBURG: I think it's incredibly 
important that when a child leaves the K-12 system, that that 
child be ready, capable of attending a higher education, whether 
it's a community college first, or the California State system. 


1 or the University system. 

2 In fact, that was the premise for me and, I 

3 believe, many others in looking at the standards, that we start 

4 at what will be needed for a student, and then working 

5 backwards, okay, if that's what is going to be needed when a 

6 child leaves grade twelve, then we had better be doing such and 

7 such in eleventh grade, and then that requires such and such in 

8 tenth grade, all the way down to kindergarten. 

9 SENATOR HUGHES: How does your Board view the 

10 recommendations from the higher education segment to raise the 

11 high school graduation requirements? How do you feel about 

12 that? 

13 MS. DRONENBURG: The first thing that we need to 

14 do is make sure that children are achieving, all children are 

15 achieving the standards we have in place now. And what that 

16 means at the high school level is really not terribly, terribly 

17 rigorous. That would mean that all children achieve algebra at 

18 the first year level. That is do-able. We know that 75 percent 

19 of children who do that can go on to higher education. If we 

20 can do that, and I believe with all my heart that we can, 

21 especially if we start with kindergarten, there is no child, 

22 save the one-and-a-half percent who are severely disabled, who 
2 3 cannot meet that. 

24 Then we need to ratchet up, and we will be able 

25 to have all children achieving algebra two. After that, I think 
2 6 it is discretionary on the part of the students whether or not 

27 and how far they want to go. 

28 But I think we need to make sure that children 


are achieving at that level, then we ratchet up, after we know 
how to do that, and we have children progressing through the 
system, and we have brought all things to bear to assure that 
they achieve that. 

Our children in California are every bit as 
bright as other places in the world, and other places in the 
world do achieve that level. Our students can. 

SENATOR HUGHES: So, we have to begin, what I 
hear you saying, with a thrust at an earlier grade level, a 
younger age, and not panic when our students get to junior high 
school, and they want to qualify to get into a fine university 

MS. DRONENBURG: There has to be a phase in. It 
is not going to be realistic or fair to either the students, the 
parents, or the teachers if next September, we're going to 
suddenly have all of the requirements for tenth graders be in 
place for ninth graders who have not had any of this 

SENATOR HUGHES: So, you would say that any 
changes that we make in this regard have to be done in the lower 
grades first, and you could not just, without discretion, go and 
raise standards on upper grade levels. Is that what you're 



MS. DRONENBURG: You're welcome. 

CHAIRMAN LOCKYER: We're engaging in a little 
side bar here about who the heck needs algebra. Now, that's not 


1 my opinion, being elected by algebra teachers, probably, among 

2 others, but it is an interesting question. 

3 MS. DRONENBURG: I'd like to answer that. 

4 CHAIRMAN LOCKYER: Yes, why don't you tell us 

5 what your view are? 

6 MS. DRONENBURG: I think that algebra is not just 

7 numbers that are unassociated with real living. 

8 From my perspective, and I come from a family of 

9 three girls, and I have three daughters, one of whom is a 

10 structural engineer, my belief is that algebra is part of the 

11 mathematics that teaches you how to think. It teaches you to be 

12 logical; teaches you to break down problems into manageable 

13 bits. And I think it is every bit as important being able to 

14 articulate. 

15 We would never say that you don't have to be 

16 literate, both with respect to what you read and with what you 

17 say, that you be able to speak well, but that also you have to 

18 be able to be logical, and you have to be able to break things 

19 down into manageable problems. I do think that's what algebra 

20 teaches you to do. 

21 CHAIRMAN LOCKYER: Certainly those are factors. 

22 There may be other disciplines that teach the same thing. 

23 Frankly, it's what law school does to most 

24 lawyers, not all. It's the same idea in terms of desired 

25 outcomes. 

26 I happen to love math. So for me, it's almost 

27 like art. And I view it in a way that is exciting. 

28 However, the gap between teaching practices and 


the potential inspiration and learning experience that comes 
from math may be the greatest of any of the disciplines. At 
least my experience was, they couldn't have done more to try to 
turn kids off about math than the gym teacher I had teaching my 
geometry class. 

I missed hearing whether Senator Hughes had an 
opportunity to ask about educational services for undocumented 
students. Did you get to that? Perhaps you might. This is an 
ongoing issue in the state. 

We just hear nice things from people, and 
sometimes we learn from your personal experience in developing 
the English language curriculum, or whatever, and that's 
worthwhile, but unless we ask kind of the tough ones, we don't 
get a real picture of how people work through these competing 
philosophies . 

Let me just ask if you've had occasion to express 
views about state funding for schooling for undocumented 

MS. DRONENBURG: It's my understanding that the 
law is clear that when children come to school, those children 
are to be educated. We have nothing to gain by not making sure 
that every single child who lives in our community is well 

That's my personal view. I'm not aware that the 
Board has taken an official position on that, but that is how we 
operate. We believe we are entrusted with the education of all 
of the students in the State of the California. 

CHAIRMAN LOCKYER: Actually, our analysis 


1 indicates that there was one Board action. It was 1993. 

2 MS. DRONENBURG: I was on the Board then. 

3 CHAIRMAN LOCKYER: There was a Board discussion 

A of Assembly Bill 149 by Assemblymember Mountjoy. It would have 

5 prohibited state funds from being used for immigrants, 

6 undocumented immigrants. 

7 The Board took a position supporting the concept, 

8 but expressing concern about its implementation. 

9 Does that ring any bell at all? 

10 MS. DRONENBURG: I was not on the Legislation 

11 Committee, and so — 

12 CHAIRMAN LOCKYER: What do you see? Does a 

13 report come through to you that's kind of a consent calendar 

14 kind of thing? 

15 MS. DRONENBURG: That is the way, in that year, 

16 I'm quite clear, I know that's what happened because then there 

17 was subsequently another action where we all were very upset 

18 with what we found out we had voted on, so we have changed the 

19 process since then. But it was essentially a list of, this 
2 committee recommends such and such. 

21 CHAIRMAN LOCKYER: It tended to move fast. 

22 Are there other questions? Is there anyone 

23 present that wishes to comment, or other questions from Members 

24 of the Committee? 

25 SENATOR LEWIS: My recollection is that you were 

26 an opponent of Proposition 174, the voucher initiative? 

27 MS. DRONENBURG: That's right. 

28 SENATOR LEWIS: I just wanted to ask your opinion 


on the efficacy of charter schools, and whether or not you favor 
a general expansion of these in California? 

MS. DRONENBURG: I do think that's one of the 
opportunities to learn about better ways to do things. The 
reason for having people explore vouchers is, they want to 
assure that more kids have a quality education. I understand 

The chance to see something different, given all 
of the rules that we have to follow, is pretty rare. And I 
think it was wise of the Legislature to expand that to give us a 
chance to look and see what some other ways to do things will 

Right now, staff was just telling me, I think we 
have 133 that have been authorized now, and 90 or so are up and 

To me, the most important part of the charter 
schools will be to look at what they claimed they were going to 
do, then did they achieve that. If they did, have they been 
careful to say how they did it so that another school or 
district can replicate it. 

My fear about charter schools is that when they 
begin, there will be a lot of very happy and excited people, and 
their enthusiasm is what's going to carry the day, and not the 
practices themselves. TVnd to me, the real value will be 
replicable practices that we can share up and down the state. 

SENATOR HUGHES: Currently there is a cap of a 
hundred. And then school districts can make exceptions for the 
additional, you said it's 130 — State Board can make these 


1 exceptions. Now you're up to 130? 

2 MS. DRONENBURG: One hundred and thirty-three 

3 have been numbered. 

4 SENATOR HUGHES: On what basis did you make these 

5 33 exceptions to the cap? What did you find out that was so 

6 exceptional and so good that you wanted to extend it to another 

7 33? 

8 MS. DRONENBURG: It was more a matter of the 

9 reverse. 

10 We felt like that our understanding was that the 

11 Legislature was in favor of this. We were not aware of any 

12 people in the educational communities who were opposed to an 

13 extension of the numbers. 

14 The Department's recommendation to us was to 

15 approve them. And because they seemed to put forth the same 

16 kinds of new ideas that the others had done, it was our feeling 

17 that there was nothing magical about the 100, given that the 

18 reception and the reaction to the whole idea in the state of 

19 over 1,000 districts was not huge when it was only 33. 

2 SENATOR HUGHES: Now that we have 133, have we 

21 had an evaluation, or anything that made you decide to increase 

22 the number? And what was in that evaluation that urged you to 

23 make this decision? 

24 What I'm getting at is, there was something 

25 different going on in these charter schools that maybe ordinary 
2 6 schools should be doing, too, if that something different made 

27 students more successful. 

28 MS. DRONENBURG: The legislation, it's my 


understanding, that created the opportunity for charter schools 
was a five-year — five years would pass before the evaluation 
would occur. So, that isn't finished yet, that five years 
hasn't been completed yet. 

SENATOR HUGHES: When will the five years be up? 

MS. DRONENBURG: We're getting close to it. 

MR. LUCIA: There .has been an interim evaluation 
just completed, and it was funded by the Legislature. 

SENATOR HUGHES: And what did that evaluation 
tell us? Have you seen it? 

MS. DRONENBURG: No, I've been immersed in 

MR. LUCIA: Just very briefly. Bill Lucia again, 
the Executive Director with the Board. 

The Legislative Analyst's Office coordinated an 
evaluation study that was an interim approach proposed by 
Assemblywoman Mazzoni as an attempt to try and answer some of 
the doubting Thomases in terms — 

CHAIRMAN LOCKYER: What did you learn? 

MR. LUCIA: On balance, the charters were meeting 
their goals as stated in the charter contract, if you will, 
between the parents and the teachers of the charter school, and 
the authorizing parent district. 

The most important thing that I gleaned from it 
that I believe the Legislature really does need to wrestle with 
as it contemplates the expansion of the charter approach is the 
issue of liability associated with direct funding. 

Right now, while the law on the one hand requires 


1 that the money go directly to the charter school site itself, in 

2 practice what happens is, the money goes from the 

3 Superintendent's Office, State Superintendent, as it does for 

4 all schools, to the district first, and then from the district 

5 to the school site. And there's been quite a bit of concern 

6 about the fiduciary responsibility and the capability where, in 

7 many school site operations in the general population, you have 

8 expertise in terms of accounting and auditing functions, and 

9 those sorts of things. 

10 CHAIRMAN LOCKYER: That they wouldn't have at the 

11 school site. 

12 MR. LUCIA: Exactly. So, that's something that I 

13 believe is really top on the agenda for the Legislature to 

14 consider. 

15 On balance, the legislation asked whether or not 

16 the approach should be continued or discontinued. So, it 

17 actually asked up or down, should this thing be stopped. 

18 I think if you read the report that it's pretty 

19 clear that it should not be stopped, that it has actually found 
2 some interesting things with respect to the demographics of the 

21 kids, that on balance they do reflect a broad section of 

22 California. In some cases, they actually have an excessive 

23 amount, if you will, of kids with special needs, or at-risk 

24 kids. 

2 5 So, there have been some communities that have 

2 6 really brought together and used this approach as an opportunity 

27 for the challenge of dealing with either kids in special 

28 education programs that have particular needs, or kids that are 


otherwise at risk in certain subject matter areas where they can 
spend some additional remediation on literacy, for example, and 
that becomes a big focus of the charter. 

And it does depend on whether it's an elementary 
charter or a secondary level charter in terms of the composition 
of the classroom. 

SENATOR HUGHES: Out of those schools, the 
charter schools that were elementary chartered connected with 
universities, did those charter schools fare any better than the 
free-standing charter schools just within a district, floating 

MR. LUCIA: I don't know the answer to that 
question. I know the charter specifically that you're thinking 
of. I don't know in terms of student achievement whether or not 
that was answered by the study. 

I haven't had a chance myself to go through all 
the reams of data that were associated with the report. It just 
came out a few weeks ago. But I'd be happy to glean that and 
see if that's available. 

SENATOR HUGHES: I'd like to find out about that, 
because then you have the university and professors in the 
universities researching that, looking at that. And I think 
that information could be so helpful to us. 

It's like, you know, I think in a way like a 
franchise, and all the quality of all franchises are not the 
same. But the people who invent and start the franchises want 
them all to live up to the same standards. 

SO/ the same thing, I think, is true of our 


1 charter schools. The charter schools are doing a fine job, and 

2 I wonder if those charters connected with universities do 

3 better. I think they do, but I'm not sure they do. 

4 MR. LUCIA: Intuitively, that's certainly 

5 plausible. In fact, in some states that's a requirement in 

6 terms of to be able to get your charter status. 

7 The one thing we do know, if it's not in the 

8 report, that this spring, with the standardized tests that will 

9 be administered to all children, including those in charter 

10 schools, will help ferret out that answer by the end of the 

11 spring. 

12 So, if it's not in the report -- if it is in the 

13 report, we'll get it to you. Senator. If not, we will wait 

14 until the spring and answer your question then as well. 

15 CHAIRMAN LOCKYER: If I can impose on your time 

16 in this way a minute more, are either of you aware of like the 

17 exemplary success of a particular charter school program that 

18 you'd like us to know about, or maybe one that, so far, hasn't 

19 been successful but we're still hopeful? Anything on either end 
2 of the evaluative spectrum that comes to mind? 

21 MR. LUCIA: If I may, the one that comes to mind 

22 on the exemplary end of things is one here locally in Senator 

23 Greene's district, in the North Natomas area, where they were 

24 not — it's not exemplary from the standpoint of the scale of 

25 the state as a whole, but in terms of what that school site 

2 6 looked like prior to becoming a charter and where they are now. 

27 CHAIRMAN LOCKYER: Is this elementary? 

28 MR. LUCIA: Yes, and where they believe they are 


in terms of longitudinal information on their standardized 
tests. They have found that to be successful. 

There's also instances in terms of the charter 
law, and the safeguards that the Legislature did put in place, 
on the other end of the spectrum. I think it is important to 
note that there have been some fiduciary failures. 

That's why, on the one hand, the" number is 133 
that were authorized in terms of the label that you attach to 
the school, but I think it's important for the Legislature to 
know that even now, under the rubric of where people believe 
that the cap has been exceeded, there are in fact now only 90 
charter schools operational to district charters. 

There have been some that have been shut down. 
There are others that were going to start up school and ring the 
bell on opening day, and they realized that they didn't have the 
adequate facility needs for the Health and Safety Code 
requirements, and those types of things. 

So, on that end of the spectrum, there have been 
some fits and starts along the way, and there have been an 
absolute shutdown in the Los Angeles area, where there was, to 
be kind, probably a poor accounting of public money. 

CHAIRMAN LOCKYER: Any examples come to mind? 

MS. DRONENBURG: No, I was unfortunately thinking 
of the sad end. 


SENATOR AYALA: School districts never lose their 
responsibility of educating their children in that district. 

Do they lose any of that responsibility when they 


1 allow charter schools to be initiated within the district? I 

2 would think not, but I don't know. Is there an oversight way 

3 of determining that the school district still has the 

4 responsibility through the charter schools to educate the 

5 children. 

6 I know of a school district where the Board of 
1 Education has said, it's not our problem; it's over there; 

8 they're handling that portion of it. 

9 Is that true, that they have no responsibility in 

10 terms of the education of those children, even though they may 

11 be charter schools? 

12 MR. LUCIA: No, that's not true. Your question 

13 dovetails into this question that I believe has been revealed by 

14 the charter school study, in that in some cases, some districts 

15 have said that since this money relationship is ambiguous in 

16 terms of the flow of money and the apportionment that goes out, 

17 and what other responsibilities may or may not follow, I think 

18 that it would be wise to have the Legislature consider 

19 clarifying that and also even ensuring where the 

20 responsibilities lie with respect to the authorizing district 

21 and the school site itself. 

22 SENATOR AYALA: Under current law that's not 

23 defined? 

24 MR. LUCIA: I believe that it is if you look at 

25 the marriage of the statutes and the general purposes of the 

26 responsibility of a district, as well as the State 

27 Superintendent, and from a fiduciary standpoint, and the State 

28 Board of Education, obviously, but also County Offices of 


Education from the standpoint of fiscal accountability. There's 
a role from the standpoint of the money side. 

SENATOR AYALA: That was my understanding when 
the law went through the Legislature. 

I know of a school district, according to the 
newspaper reports that said, hey, you're over there; you're 
handling it; don't worry about it; we don't care. 

I would think that that is wrong, in my opinion. 
I don't think they lose any responsibility just because charter 
schools are created in a district. 

My question is, is there any oversight to make 
sure that doesn't occur? The board has said, hey, look, it's 
not our problem; it's your problem. 

MS. DRONENBURG: It's my understanding that that 
is the responsibility of that local board. When that local 
board approves the plan for that charter to be created, they, by 
approving the plan, are saying that they think that charter can 

You're right, in my view. They don't lose 

In fact, though, that leads to the concern I have 
with respect to two of the charters which are district-wide. I 
don't think it's been clarified whether or not the State Board 
of Education becomes responsible — 

SENATOR AYALA: I'm not talking about the State 
Board. I'm talking about a local board. 

MS. DRONENBURG: I understand, but I'm saying 
it's the same kind of a thing. If you have in a local district 


1 the local board responsible for a charter within its school, 

2 which I believe that is the case, then what happens when -- and 

3 in two cases it is the case where an entire district becomes a 
A charter. 

5 Who then is responsible? Law says that the State 

6 Board of Education is. Does that mean we're fiduciarily 

7 responsible? That has not been discussed or clarified. 

8 SENATOR AYALA: I don't know how often this 

9 happens, but it has happened where the local boards have said, 

10 no, they're over there; don't bother us with that; good 

11 riddance, sort of. I think it's wrong. 

12 MS. DRONENBURG: That is wrong. 

13 CHAIRMAN LOCKYER: What are the two? Do you 

14 recall? 

15 MS. DRONENBURG: One is in Fresno. 

16 MR. LUCIA: Mr. Chairman, I don't know off the 

17 top of my head. One's in the Fresno area, I believe, and 

18 another is a small school district where it's one-site school 

19 that constitutes a school district. 

2 CHAIRMAN LOCKYER: So, they're both small. 

21 MR. LUCIA: Yes. 

22 CHAIRMAN LOCKYER: Other questions? Anyone 

23 present that wishes to comment? 

2 4 SENATOR LEWIS: Move confirmation. 

25 CHAIRMAN LOCKYER: We have motion to confirm. 

2 6 May I record the four of us present as voting 

27 Aye? That'll be the order. Thank you for your fine work and 

28 keep it up — 


MS. DRONENBURG: Thank you very much. 

[Thereafter, SENATOR BRULTE 

returned to Committee and 

added his Aye vote, making 

the final vote 5-0 for 

confirmation. ] 
CHAIRMAN LOCKYER: We have Mr. Duplissea. Good 


MR. DUPLISSEA: Good afternoon. 

CHAIRMAN LOCKYER: Well, I'm looking at this long 
list of prior employment, running back to the Dallas Cowboys. 

What's the matter? Can't you keep a job? 

MR. DUPLISSEA: I'm looking for a team that's 
look for a 47-year-old lineman actually right now. 

CHAIRMAN LOCKYER: Do you want to start with any 
comment. Bill? 

MR. DUPLISSEA: Certainly. 

Mr. Chairman and Members, I want to thank you for 
giving me the opportunity to come before you again as I did four 
years ago to ask for your — my distinguished Senator wanted to 
actually introduce me. 

CHAIRMAN LOCKYER: The wolf is at the door. No, 
he left. Now Senator, do you want to open here? 

SENATOR KOPP: Yes, I'd like to if I could, Mr. 
Chairman and Members. 

I appear to commend Mr. Duplissea to you. I 
don't think I need spend any time, nor should I, with respect to 
your own personal knowledge of him. 


1 CHAIRMAN LOCKYER: I always thought you were a 

2 49ers fan. This guy worked for the Dallas Cowboys. 

3 SENATOR KOPP: I was and still am. I was there 

4 Saturday. It was quite enjoyable. 

5 CHAIRMAN LOCKYER: It was 25 years ago, too. 

6 SENATOR KOPP: I knew him when he was such a 

7 klutz that he broke his leg playing basketball. 

8 He has, however, cured himself of that kind of 

9 Walter Mitty-like quality and is now a hard-working and 

10 certainly sincere and knowledgeable exponent and executor of 

11 policies and responsibilities of OSHA. 

12 He has a business background which you're 

13 certainly generally familiar with, and he has a background of 

14 knowledge and experience with the legislative process, and now 

15 for several years in the executive branch of government with 

16 administrative experience. 

17 He has always been forthright, and he has been 

18 fastidious just in terms of personal relationships and providing 

19 information and opinions to Members of the Legislature and 
2 throughout the community at large. And even though I don't 

21 represent San Carlos as such, the boundary of the district is 

22 close enough so that I know of his reputation in San Mateo 

23 County, and it's a reputation of truth and veracity, which is 

24 important. 

25 In fact, I think it's quintessential because 

2 6 there's always the inevitable tension between the Legislature 

27 and the executive branch of government. And OSHA is certainly a 

28 significant issue in the administration of the act itself, and 


those regulatory responsibilities is extremely important to 
California, to the Legislature as the people's representatives. 

And Bill Duplissea does an outstanding job in 
those respects. I'm pleased to introduce him as it is, and 
also again to commend him for your recommendation. Thanks. 

MR. DUPLISSEA: Thank you. 

CHAIRMAN LOCKYER: Thank you, Senator. 

Go ahead. You wanted to conclude your comment. 

MR. DUPLISSEA: Actually, I know the hour's 
getting late. I just wanted to again, by way of really an 
update for the last four years. 

I'm actually quite excited about the OSHA Appeals 
Board. It has helped me make the transition from one involved 
in public policy to a judicial board which is very judicial in 
its nature. But we've made some very exciting changes in the 
last — really about the last year-and-a-half , I would say, 
would be the time period with my fellow members, Bryan Carver, 
who's the labor member, and our Chairman Jim Gazdecki, whom this 
committee confirmed not too very long ago. 

And as in the area of outreach, each of your 
offices and many of you individually as Legislators, each Member 
of the Legislature has been contacted within last year 
specifically to inform you of what the Board does, what our 
function is, how it can be of help and service to your 
constituents. Some of your offices have taken us at our offer 
to give an expanded rendition of what we do. 

And to make it a little bit more visible to our 






constituency, our clientelle, however you choose to refer to it 
as, and that prompted us to take a survey last year where we 
came -- we took one month in the prior year, which would have 
been 1996, in November, took every -- polled all of the 
employers who had appeals before us. Also polled all of the 
personnel from the Division, which of course acts as the 
prosecutorial part of the adversarial proceedings, " some very 
simple questions. 

And the results of the survey came back very 
favorable. Without exception, every person responding indicated 
that the administrative law judge who handled the appeal did so 
in a professional manner, which certainly was one of our 
concerns. Over 90 percent of those responding indicated that 
they, even if they had disagreed with the outcome, that they 
received a fair, impartial, and intelligent consideration of 
their appeal. 

All but two that responded found our letters, 
forms, notices that had been sent to them by the Board were 
written in satisfactory or even — with even superior clarity in 
terms of clarifying the appeals process. 

It did point up, however, the survey, a problem 
that we have spent basically the last year-and-a-half 
addressing, and that is the tremendous backlog that had existed 
in the Board. I'm happy to report that there's been a 4 00 — 
slightly over 400 percent decrease in the turn-around time 
compared to the prior years of appeals. 

The three-member Board, which is what this 
committee deals with principally, which is the appeal beyond the 


administrative law judge level, deals in decisions after 
reconsiderations/ are called DARs. And by making that 400 
percent improvement, we've taken the time, which unfortunately 
and, I suppose, shamefully in the last many years, has sometimes 
been a nine, ten, eleven month process, down to something 
slightly over 30 days. And that's been done, certainly aided 
by our rather expensive office, automation, a lot of systematic 
changes, and really some good, old-fashioned management, some 
hard-ball as far as work product is concerned. 

I've been very proud to serve on the Board, and 
there's a lot of ideas that we're working with now that I would 
like an opportunity to continue with. That's why I would ask 
that you suggest to the full Senate that I be confirmed. 

I think I have somewhat of a unique background. 
I bring a unique set of circumstances, and a unique background 
to the Board, being both a former laborer — and I don't 
specifically refer to my football career in that, although it 
could be characterized as such — also as a small business 
owner, and obviously as a Legislator who has dealt in various 
issues that, of course, do impact directly or indirectly with 
the Department of Industrial Relations and specifically the OSHA 
Appeals Board. 

With that, I would ask that you recommend to the 
full Senate — 

CHAIRMAN LOCKYER: I'd add, it's apparent you've 
been taking elocution lessons from Senator Kopp. 

[Laughter. ] 

MR. DUPLISSEA: Isn't it amazing how that 


1 happens . 

2 CHAIRMAN LOCKYER: It rubs off. 

3 SENATOR KOPP: I noticed/ Mr. Chairman, if I may, 

4 in describing the form, the response on the survey to the forms. 

5 He described it in these words, that the forms appeared to be of 

6 superior clarity, rather than saying that the customers could 

7 understand them. 

8 [Laughter.] 

9 CHAIRMAN LOCKYER: You've made my point. 

10 Senator Hughes. 

11 SENATOR HUGHES: Mr. Duplissea, we'll forgive you 

12 for that. Sometimes we follow role models that we should, and 

13 sometimes we follow role models that we shouldn't. 

14 [Laughter.] 

15 SENATOR HUGHES: But you didn't do too bad. 

16 We've received several complaints that the level 

17 of fines have been decreasing, and the Appeals Board reduces the 

18 fines to a fraction of the original amount. 

19 Is that right? Is that really happening? And if 
2 you do it, why do you do it? 

21 MR. DUPLISSEA: No, I can categorically say that 

22 isn't true. Unfortunately, there have been several articles, 

23 both in this last year-and-a-half , year that I've been serving, 

24 as well as the previous four years. 

25 It's a very easy charge to malce, to say so many 
2 6 dollars in assessments have been made, yet so many after the 

27 appeals process were upheld. 

28 The unfortunate reality is, we are not a public 


policy entity. We are essentially a judicial body. We are not 
the Division. We are not the Division, the OSHA Division that 
does the citings, comes to the hearings, presents its evidence, 
calls its witnesses, and so on and so forth. 

The reality of the situation — I don't mean to 
start some internecine battle here within the Department of 
Industrial Relations, but the plain and simple fact is, many 
times both parties to the action are not prepared, and many 
times incorrect safety orders have been cited, and many times 
witnesses don't give testimony, and many times contentions are 
made about citations that, under the scrutiny of the adversarial 
action, quite frankly, just don't hold up. 

Then again, the Division has the authority to 
plea bargain, if you will, and oftentimes do at the 
administrative law level as far as the — for instance, knocking 
down what had been cited previously as serious violation to a 
general violation, which of course is a tremendous difference in 
the level of the penalty. 

SENATOR HUGHES: We pass all kinds of laws here 
in the Legislature. We pass different laws, and then extensions 
of state legislative laws on the local level. 

For instance, in Los Angeles, we had a lot of 
horrible things discovered about some restaurant. It was a very 
embarrassing situation. We had these laws on the statutes that 
weren't being implemented. We had inspections of restaurants 
that were only inspected maybe once a year, and they should have 
been inspected more frequently. So, we're cleaning that up. 

Now, I'm also concerned about our largest 


1 industry, and that's agriculture. And I understand that 

2 farmworkers are having great problems in some sanitary 

3 conditions, and some just basically human conditions that are 
A being neglected. 

5 What do you think about the enforcement and the 

6 safety of food that we're having grown in our state, as we send 
"7 food around the world and food across the nation? " And the 

8 legislation provided for penalties in the 1990 piece of 

9 legislation of $750 for each violation, in '94, we enhanced 

10 these penalties for repeated offenders. 

11 I still hear that there are violations, that 

12 there's no adequate drinking water for farmworkers, no adequate 

13 toilet facilities, no toilet paper for farmworkers. 

14 Have you really looked into these things? That 

15 just sounds so archaic to me. I can't believe, in this day and 

16 age, if we have these statutes on the books, why aren't we 

17 enforcing them? 

18 I really get upset when I hear about all of these 

19 viruses and flus that we may have because our farm products or 

20 farm animals may be infected. Are we going to wait until 

21 something serious happens here, some kind of epidemic or 

22 something, that we haven't looked at the facilities where our 

23 farm products are raised and where farmworkers work? Are you 

24 going to look at that, Mr. Duplissea? 

25 MR. DUPLISSEA: The field sanitation cases, I, in 
2 6 a way, wish we were maybe another three or four months down the 

27 road here, because as you know, there's a time delay between the 

28 time new legislation, regulation takes effect. And then, of 


course/ employers, the appeals process is some ways down the 

Currently, right now at this point, we are 
still — we have taken some on our own motion as a Board, and 
some others that are being appealed for decisions after 
reconsideration. We are trying to bundle all of the field 
sanitation briefs that we have so that we can determine 
conclusively — keeping in mind there's prior Board precedent 
which guides us generally. Of course now there's a new statute, 
new regulations — to bundle those cases where there is an 
appeal, an appealable case, and to, in a comprehensive way, to 
once and for all put the imprimatur of the OSHA Appeals Board as 
to what is and isn't true. 

The public policy issues there, of course, we 
don't have a great deal of control there. You as the 
Legislature have — especially in the field of sanitation — 
have spoken very loudly and clearly, and really removed a great 
deal of the ambiguities that exist in other areas of the Labor 
Code specifically with field sanitation. I think there was 
probably less question as to the enforcement provisions in field 
sanitation probably now than in any other area. 

SENATOR HUGHES: I just hope to God that no 
epidemic breaks out, and I also hope to God that no editorial 
board or ambitious reporter has to make a headline issue of 
these things, of statutes that have been on the books for ten or 
fifteen years, or even five years ago, that you haven't looked 
at. Because we are so responsible for the agricultural products 
that we sell, import, export, transport, and the lives of the 


1 workers in the fields. 

2 So, I hope that this year coming, you'll look and 

3 see how far back you are in your inspection program, and just 

4 basic needs about where people are, do they have a place to wash 

5 their hands? Do they have paper towels to dry their hands? Do 

6 they have a decent toilet to go to, and does it have toilet 

7 paper. 

8 I'm talking about basic needs. 

9 So, if we don't look into that, and I know that 

10 you're not going to be guilty of not looking into that this 

11 coming year, as you have come to us to renew your contract, and 

12 we renew your contract, I want you to raise your hand and say, I 

13 do. 

14 MR. DUPLISSEA: I do. 

15 CHAIRMAN LOCKYER: Would you like a drink of 

16 water? 

17 [Laughter.] 

18 CHAIRMAN LOCKYER: On this point, there seems to 

19 be some issue related to recent reconsideration of some of the 

20 penalties or failure to follow field sanitation laws. 

21 Our analysis suggests that the Board has ordered 

22 reconsideration of six cases where there were penalties for 

23 violation of field sanitation standards. What's that about? 

24 MR. DUPLISSEA: If it was what I was discussing 

25 earlier today as a result of being contacted by your office, 

26 that was essentially the Board, on its own motion. 

27 CHAIRMAN LOCKYER: There was no request from an 

28 employer or anyone else? 


MR. DUPLISSEA: Right, but it wasn't on field 
sanitation. It was the idea that we would take something up on 
our own motion. And the conservation I had earlier with some in 
a meeting arranged through your office was the fact that we 
really shouldn't be doing that. 

I think once all the facts were on the table, 
everyone understood that there is a great need, and the small 
part of my job that is public policy when there is a wrong that 
must be redressed, that we do have to exercise that ability. 

And let me give you an example that is a case 
recently concluded called Rick's Electric, where the ALJ found, 
by reasons of law, testimony, so on and so forth, that the 
violations should be vacated and the fine dispensed with. 

We took it on our own motion, and in fact 
reinstated the fine. This was a case of reclassification of -- 
the reclassification of a serious to a general where there was 
serious injury. Not death but serious injury. 

There was some concern — 

CHAIRMAN LOCKYER: What's the injustice in this 
instance that you're righting? 

MR. DUPLISSEA: Well, the injustice was, when the 
ALJ who heard the — the administrative law judge hearing the 
case felt that the employer made a compelling case for prior 
practice, for demonstrating an useful — 

CHAIRMAN LOCKYER: You mean in the instance 
you're citing of serious to general? 

MR. DUPLISSEA: Right. This was a case where we 
did, as a three-member Board, pluck it up and redo it. 


1 CHAIRMAN LOCKYER: Why did you pluck these? 

2 MR. DUPLISSEA: Because there was a serious 

3 injury and there was a suspension of the citation. 

4 CHAIRMAN LOCKYER: No, I mean the six. 

5 MR. DUPLISSEA: Because they are to be bundled 

6 with the rest of the field sanitation cases. 

7 CHAIRMAN LOCKYER: You're reviewing the general 

8 batch of cases? 

9 MR. DUPLISSEA: Yes, because we now have new law, 

10 and we also have prior board precedent which has guided us one 

11 way; now we're going to be going another. So, to make them 

12 consistent, they will all be bundled together. 

13 CHAIRMAN LOCKYER: What would be the change in 

14 direction? 

15 MR. DUPLISSEA: Now, with the new legislation 

16 passed and the appeals having to do with it, of course this 

17 legislation is much more specific than those parts of the Labor 

18 Code which had previously had jurisdiction over these kinds of 

19 citations in farm situations. 

20 CHAIRMAN LOCKYER: This is '94 legislation? 

21 MR. DUPLISSEA: This is the '94 legislation. 

22 Well, the enhancements, I think, are '96. I believe the penalty 

23 enhancements and the automatic penalty enhancements are '96. 

24 CHAIRMAN LOCKYER: It says '94 in our workup, but 

25 that may be inaccurate. 

2 6 That's an interesting example if you're showing 

27 how you can be more scrupulous about enforcing the intent of the 

2 8 law. 


MR. DUPLISSEA: And just having the right to do 

CHAIRMAN LOCKYER: Another artful device that you 
learned from the excellent lawyer next to you there. 

But the point is, there seemed to be six field 
sanitation cases unrelated to serious-to-general. 

MR. DUPLISSEA: Taken up on our own motion, 
without the appeal coming from the employer, simply so we can 
bundle them to make them consistent with whatever we come up 
with vis-a-vis prior board precedent. 

CHAIRMAN LOCKYER: I guess I get it now. 

Senator Ayala. 

SENATOR AYALA: In addition to what Senator 
Hughes rieferred to in the analysis, the conditions that are 
described in the analysis are shocking. This is back in 1940, 
when I worked the fields, that this was existing. You'd think 
that it would have improved. 

Now, your commission inspected less than 50 
percent of all the California farms. Out of those, 50 percent 
were in violation of sanitation laws. 

I didn't quite hear the answer to Senator Hughes. 
What are we going to do about that? 

MR. DUPLISSEA: Of course, now the Appeals Board 
itself does no inspection. We are essentially the court of 
appeal for the employer after the citation. 

SENATOR AYALA: You're the appeals. We should be 
directing this to the Board itself. I wonder what they're doing 
about that? Do they need personnel? 


1 MR. DUPLISSEA: Just between us, not enough. 

2 CHAIRMAN LOCKYER: I think we would agree. 

3 Other questions from Members? Anyone wish to 
A comment or testify? 

5 What is the pleasure of the Committee? 

6 SENATOR LEWIS: Move confirmation — 

7 CHAIRMAN LOCKYER: We have a motion to confirm. 

8 May I substitute the roll? All right, that'll be the order. 

9 We'll add Mr. Brulte if he returns, but unanimous of those 

10 present. 

11 [Thereafter, SENATOR BRULTE 

12 returned to Committee and 

13 added his Aye vote, making 

14 the final vote 5-0 for 

15 confirmation.] 

16 MR. DUPLISSEA: Mr. Chairman and Members, thank 

17 you very much. 

18 CHAIRMAN LOCKYER: Thank you for your 

19 conscientious service. 

2 We have Ms. Forster. Senator Craven, your turn. 

21 SENATOR CRAVEN: Thank you for giving us this 

22 opportunity. And I know Mary Jane has been, since about 2:00 

23 o'clock this morning, getting ready for this. She read a little 

24 bit of what we wrote, and then she said two rosaries, I think. 

25 She was, as you may or may not know, reappointed 
2 6 to the Water Resources Control Board back in February of 1997. 

27 She was the Governmental Affairs Manager for the Municipal Water 

28 District of Orange County from 1976 until her appointment. 


From 1983 to '93, she was a member of the San 
Diego Regional Water Quality Control Board. From 1989 to '91, 
she was on Planning Commission for San Juan Capistrano. From 
1990 to '93, she was member of USCP, which is National Drinking 
Water Advisory Council. 

She earned a Bachelor of Arts degree in Social 
Science from the College of Mount St. Vincent in New York. 

I've had, by virtue of my district, I suppose, as 
much as anything, an opportunity to have a chance to watch her 
in that work, and to back up what she thought was the 
appropriate approach. 

And I must say this, that despite her 
graciousness, she has a great will. And if she feels something 
should be done for the people, or vice-versa, she will be the 
first to tell you, and she will not move off, because she has 
studied it, and she has taken hours of her time to check into 
those things which are the real meat of the decisions which must 
be made in water districts and in that general area of concern. 

I think a great deal of her, and I've watched her 
over a period of a few years. And the fact that we are sort of 
landsmen — she's a New Yorker, and I'm a Philadelphian — that 
must be something that we have between us. I know it isn't that 
purple dress. 

CHAIRMAN LOCKYER: I know how you got to the West 
Coast, but I don't know how she got from New York. 

SENATOR CRAVEN: She may have been a Marine, too. 
I don ' t know . 

SENATOR HUGHES; The same way I did, by airplane. 


1 [Laughter. ] 

2 SENATOR CRAVEN: But, you know, I used to have a 

3 nun when I was in granunar school, and she was very, very small, 

4 tiny. And she was the toughest one we had. And she used to 

5 say, or her saying was, I'm small, but oh my. 

6 I think she really fits that bill, too, because 

1 as a woman who's been out among the folks, trying to provide for 

8 them services that are very much needed and should be done in an 

9 equal way, she has gained a great deal of experience. I'm 

10 confident that she was appointed originally because of that 

11 fact. She has done exceedingly well. 

12 So, I was very happy to come up here to offer 

13 just a few words. 

14 The date's still on; isn't it. 

15 MS. FORSTER: Uh-huh. 

16 SENATOR CRAVEN: I hope that you have had the 

17 opportunity to look over some of the material, which I'm sure 

18 you have. I'm sure in so doing, you will feel as I do that she 

19 is a person who is certainly worthy of appointment to this very 

20 important task. 

21 CHAIRMAN LOCKYER: Thank you. Senator. 

22 SENATOR CRAVEN: Thank you. 

23 SENATOR AYALA: He neglected one very important 

24 item here, which said that she was named Woman of the Year of 

25 the California Legislature by Senator William Craven in 1997. 

26 SENATOR CRAVEN: Well, the first thing, I'll 

27 drink to you. 

28 CHAIRMAN LOCKYER: Senator, have you concluded? 


Thank you, sir. 

Did you want to start with any comment? 

MS. FORSTER: I just would answer your question, 
how I got to California. I came here as a school teacher for 
the Los Angeles City Schools. 

CHAIRMAN LOCKYER: Because that job was there? 
Is that what drew you? 

MS. FORSTER: I had a brother out here who was 
going to be a pharmacist and wanted me to come out get out of 
the New York for a little while. I came and I stayed, and I 
taught for ten years. And then I got an opportunity to get into 
water resource education development. I did that for ten years, 
doing all that research to develop programs. 

I got a great passion for legislation and 
regulation on clean water and safe drinking water. And this is 
my 22nd year in water resources. And thanks to you and your 
colleagues, I've had four great years on the State Water 
Resources Board as the public member. I've enjoyed every moment 
of it. 

I know it's late in the day, so I welcome your 

CHAIRMAN LOCKYER: We've had an opportunity to 
have extensive discussions, but that precedes Senator Hughes's 
membership on the Committee. As usual, you're in the capable 
hands of three Democrats, I point out. 

SENATOR CRAVEN: I don't know what she is. 

CHAIRMAN LOCKYER: Oh, it doesn't matter. I 
know, but like you, we don't even think about those things. 


1 SENATOR CRAVEN: That doesn't really move us. 

2 CHAIRMAN LOCKYER: Bill, has this Governor 

3 appointed a Democrat to anything? 

4 SENATOR CRAVEN: I doubt it. 

5 CHAIRMAN LOCKYER: I can tell you, 93 percent. 

6 SENATOR CRAVEN: Only if somebody lied to him, I 

7 think. 

8 [Laughter.] 

9 CHAIRMAN LOCKYER: But we don't look at those 

10 things. 

11 What's been the toughest issue that you've 

12 confronted during these last four years? 

13 MS. FORSTER: The toughest issue that comes 

14 before our Board deals with people who have to clean up 

15 underground storage tanks. They're in a priority list, and they 

16 have spent their whole livelihood cleaning up. And they're not 

17 yet to the point where they can be reimbursed. That is very 

18 hard. We can't move them up unless there's something very dire, 

19 because everybody else has been waiting. 

2 CHAIRMAN LOCKYER: How often do you hear those? 

21 MS. FORSTER: Not very often, but when you do, 

22 they're so heart breaking. 

23 CHAIRMAN LOCKYER: Is it a few times a year? 

2 4 MS. FORSTER: No, about once a year maybe. Last 

25 year we had one; the year before, one or two. 

2 6 CHAIRMAN LOCKYER: How long is the line waiting? 

27 MS. FORSTER: Well, next year is the end of the 

2 8 underground tank program. Everybody's supposed to have 


remediated and done their corrective action. 

We have — we've taken in $700 million into the 
fund. We spend about $20 million. Reimbursements are a million 
dollars of four different categories. 

It's working, and it's just, some people just 
have the unfortunate experience that they can't wait. And we 
try to accommodate them. That's been the toughest. 

CHAIRMAN LOCKYER: Other questions. 
SENATOR HUGHES: I'd like to move confirmation. 
CHAIRMAN LOCKYER: All right, a motion is made to 

May I record the three of us as voting Aye, and 
we'll leave the role open for our colleagues to join. 

[Thereafter, SENATOR BRULTE 
and SENATOR LEWIS returned 
to Committee and added their 
Aye votes, making the final 
vote 5-0 for confirmation.] 
Thank you for your patience, and good luck. Keep 
up the good work. 

MS. FORSTER: Thank you. Senator. 
SENATOR CRAVEN: Thank you, Mr. Chairman. 

[Thereupon. This portion of the 
Senate Rules Committee hearing was 
terminated at approximately 4:35 P.M.] 
— ooOoo — 





I, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California/ do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 

/ day of^ 

, 1998. 

Shorthand Reporter 


Additional copies of this publication may be purchased for $3.75 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 

1 020 N Street, Room B-53 

Sacramento, CA 95814 


Make checks payable to SENATE RULES COMMITTEE. 
Please include Stock Number 339-R when ordering. 


FEB 9 1998 

PUibLiC LlbrtARY 





ROOM 113 


2:17 P.M. 


Reported by 




ROOM 113 


2:17 P.M. 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 





J. W. FAIRMAN, JR., Warden 

California State Prison, Corcoran 

California Substance Abuse and Treatment Facility 

FRANK R. SEARCY, President 

Chicano Correctional Workers Association 

ROY MABRY, President 

Association of Black Correctional Workers 

GREGORY SENEGAL, Vice President 
Walden House, Inc. 


Energy Resources Conservation and Development Commission 


Department of Housing and Community Development 


California Coalition for Rural Housing 


Western Center on Law and Poverty 




























Housing California 


California Pipe Trades 

California Pipe Trades 


Planning and Conservation League 




Proceedings 1 

Governor's Appointees; 

J. W. FAIRMAN, JR., Warden 

California State Prison, Corcoran, 

California Substance Abuse and Treatment Facility 1 

Background and Experience 1 

Witnesses in Support: 

FRANK SEARCY, President 

Chicano Correctional Workers Association 5 

ROY MABRY, President 

Association of Black Correctional Workers 5 

GREGORY SENEGAL, Vice President 

Walden House 6 

Questions by SENATOR AYALA re: 

Difference between SATF and Norco 6 

Average Stay of Inmates at SATF 7 

Follow-up Program 7 

Questions by CHAIRMAN LOCKYER re: 

Recruitment of Qualified Staff 8 

Possible Expansion of Treatment Slots 8 

Calif ano Report 9 

Proportion of All Prisoners that Might 

Be Potential Clients in SATF 10 

Number of Staff Currently 10 

Hardest Part of Job 11 

Differences between California 

and Illinois Correctional Systems 12 


Questions by SENATOR AYALA re: 

3 Effect of New Grooming Standards 13 

4 Problems with Elimination of Tobacco 13 

Motion to Confirm 14 

^ Comments by CHAIRMAN LOCKYER re: 

1 Expansion of Program in Near Future 14 

g Committee Action 15 


Energy Resources Conservation and Development Commission .... 15 

Background and Experience 16 

Question by CHAIRMAN LOCKYER re: 

Original Appointment Date 17 

Questions by SENATOR BRULTE re: 

ISO and PX Leadership and 

Start-up Date 18 

Questions by CHAIRMAN LOCKYER re: 

Unpredicted Spike in California 

Gasoline Prices 19 

Questions by SENATOR AYALA re: 

Deregulation, and Possibility that Consumers 
and Small Business Will Subsidize Large 
Consumers 20 

Motion to Confirm 21 

Committee Action 21 


Department of Housing and Community Development 21 


Questions by SENATOR HUGHES re: 

Eligibility for Families with Each 

Lease Renewal 25 

Plan for Implementation of HCD Regs 26 

Properties Jointly Funded by HUD and HCD 27 

HCD Requirements Compatability with 

Federal Requirements 27 

Exemption of Tenants in Nonprofit 

Housing Projects 28 

Familiarity with Unmet Needs for 

Affordable Housing in California 30 

Plans to Expand Affordable Housing 30 

Highest Priority in Housing Element 

Process 32 

Questions by SENATOR AYALA re: 

Alien Verification Issue 33 

Motion to Confirm 34 

Witnesses in Support; 


California Coalition for Rural Housing 34 


Western Center on Law and Poverty 35 


Housing California 36 

Witnesses with Concerns: 


California Pipe Trades Council 38 

DAN CARDOZA, Attorney 

California Pipe Trades Council 39 

Questions by SENATOR HUGHES re: 

Installation of Plastic Pipes in 
Residential Facilities Currently 40 

Efficacy of Commercial 

Water Purifiers 41 


Questions by SENATOR AYALA re: 

Authority of HCD to Approve or 

Disapprove Housing Materials 42 

Resumption of Testimony by MR. CARDOZA 43 

Questions by SENATOR BRULTE re: 

Governor's Meeting with Goodrich 44 

Response by CHAIRMAN LOCKYER 44 

Questioning Expertise of 

State Employees 45 

Questions by CHAIRMAN LOCKYER re: 

Tentative Deadline for Concluding 

Debate on Plastic Pipe 46 

Further Witness with Concerns: 


Planning and Conservation League 47 

Questions by CHAIRMAN LOCKYER re: 

Confident that EIR Will Comport with 

State Standards and Be Professional 48 

Timeline for Draft, Internal Review, 
Recommendations 49 

Target of Late April for Draft EIR 50 

Experts Associated with Analysis 50 

Analysis of Underlying Studies and Risk 
Assessments, then Public Comments 50 

Length of Public Comment Time 51 

Request to Allow 60 Days for Public 

Comment on Draft EIR 51 

Breakdown of Day ' s Work 51 

Mobilehome Park Inspections 52 

Requests by ART CARTER 53 

60-Day Comment Period on EIR 53 


Names of Technical Experts Providing 

HCD Review 54 

Questions by CHAIRMAN LOCKYER re: 

Acceptability of 60-Day Comment Period 54 

Request by CHAIRMAN LOCKYER to Put Over 

Confirmation for Two Weeks 56 

Termination of Proceedings 56 

Certificate of Reporter 57 

— ooOoo-- 

CPIAIRMAN LOCKYER; We'll hear from some 
appointees. Mr. Fairman, good afternoon. 

MR. FAIRMAN: Good afternoon. 

CHAIRMAN LOCKYER: Very often people start with a 
statement. You're invited to, if you wish to. 

MR. FAIRMAN: With your permission, I'd like to 
read this statement into the record. 

I'd like to say good afternoon to the Senators 
and Members of the Rules Committee. My name is J. W. Fairman, 
Junior. I stand before you today with the hope that you confirm 
me as Warden of the largest and most progressive prison in this 
great state of California and arguably the country. 

I'd like to share with you today just who I am, 
and why I merit your consideration. I understand that you have 
a copy of my resume, so I shall only touch upon the highlights 
of my career and some of my specific management belief or 

Although I'm new to the California Department of 
Corrections in the State of California, I'm a veteran of 27 
years in the public service, that is the corrections industry; 
26 of those years have been in an increasingly administrative 

And along with my extensive experience, I have 
recognized that a good and continuing education is 
paramount to the successful management of a multi-million dollar 
industry. I will continue to avail myself of post graduate 

1 training programs in the area of management/ most notably the 

2 John F. Kennedy School of Government at Harvard University in 

3 Cambridge, Massachusetts. And number two, the J. L. Kellogg 

4 Graduate School of Management at Northwestern University in 

5 Evanston, Illinois. 

6 Keeping the last two topics in mind, I shall now 

7 tell you that I believe in a strong management style. 

8 Specifically, fiscal responsibility, management team concept, 

9 empowering staff, and strong communication. 

10 I see the managing of the California Substance 

11 Abuse Treatment Facility and State Prison as a challenge and an 

12 opportunity for California to an establish a model for the rest 

13 of country to follow. Meeting this challenge has and continues 

14 to provide me with a tremendous opportunity to be a part of the 

15 revolutionary concept in the field of corrections. It has also 

16 provided me with the opportunity to learn a whole new system of 

17 policies, procedures, customs and mores. 

18 One of the key elements of strong management is 

19 fiscal responsibility. By this I mean the following: number 

20 one, identification of fiscal parameters and limitations; number 

21 two, establishment of meaningful monitoring systems for an 

22 accurate and timely accountability of over-expenditures with the 
2 3 thought in mind of forcasting problem areas; and number three, 

24 establishing a plan for swift action to rectify 

25 over-expenditures. 

2 6 I strongly believe in management team concept. 

27 By that I mean I involve the appropriate team members for 

28 meaningful discussion and input. This includes a specialized 

department within CDC Headquarters. 

Number two, I accept all the input from 
management staff at SATF. 

TVnd number three, I make the best possible 
decisions. However, prior to implementation of difficult 
decisions, I contact my superiors for their review and 

I also believe in empowering my staff with the 
delegation of authority, not relegation of authority. I 
delegate to staff the authority which allows them to perform 
their job duties. I believe in holding people accountable for 
their actions. 

I also believe in the effectiveness of good 
strong communication. Some examples are, I communicate basic 
expectations to all staff during the orientation period. Number 
two, I provide staff with meaningful training so they can 
perform their job duties to the best of their abilities. Number 
three, I conduct town hall meetings, or open forums feedback 
from employees with them receiving an amnesty so they can feel 

Now that I've shared with you who I am and what 
my management beliefs are, I shall tell you why I traveled here 
to be Warden of the California Substance Abuse Treatment 
Facility State Prison at Corcoran. 

When I first became aware of CDC plans for 
opening and operating the Substance Abuse Treatment Facility, I 
was very impressed and interested. I had several conversations 
and interviews with the Undersecretary of YACA, the Director of 

1 CDC, the Deputy Director of Institutions, as well as other top 

2 level managers of CDC, where we discussed management and 

3 correctional philosophy. 

4 The State of California and the California 

5 Department of Corrections has conceived and implemented one of 

6 the most insightful and innovative plans that I've seen in the 

7 correction industry. The notion of an innovative, fiscal design 

8 with the therapeutic community-based drug abuse treatment is 

9 unprecedented and very exciting. I see this as a paradigm shift 

10 from the warehousing concept and a worthwhile envisionary 

11 approach to reducing the ever increasing prison population. 

12 The research that backs this concept clearly 

13 indicates that substance abuse treatment programs will reduce 

14 the prison recidivism rate by approximately 35 percent over a 

15 two-year period. It will help in the rehabilitation of felon 

16 drug users and directly reduce the crime rate. 

17 I am proud and excited to be a contributing 

18 member of this new undertaking. I want to thank you Senators 

19 for the opportunity to appear before you today. 

2 CHAIRMAN LOCKYER: Thank you very much. I know 

21 we'll have questions, but maybe it would be expeditious to take 

22 testimony first. 

2 3 Are there people present who'd wish to either 

2 4 support or oppose the confirmation? 

25 We have letters in our file that are numerous, 

2 6 from mayors and so on. And I might note the presiding judge in 

27 Cook County just sent a letter of support as well. 

28 Good afternoon. 

MR. SEARCY: Good afternoon, Senator and 
Committee Members. 

I am Frank Searcy, President of the Chicano 
Correctional Workers Association. 

We are here because we believe in the things that 
Mr. Fairman has shared with you today. We understand his 
concept. We understand that he has an outstanding experience 
record in other areas that he has been employed. 

Therefore, we join him in asking you to take this 
to the full Senate, and we support the candidate for the Warden 
at that institution. 

Thank you, sir. 


Please, next. 

MR. MABRY: Chairman Lockyer and the Senate Rules 
Committee Members, my name is Roy Mabry. I'm the State 
President for the Association of Black Correctional Workers. 

We're giving our full support for confirmation 
for Mr. Fairman 's position. 

Also, I had — when Frank was talking, Frank 
Searcy, who just walked away from the podium here, he used all 
the words that I was going to state to you. We're contemplating 
our plan. 

Anyway, full support for confirmation. 


MR. SENEGAL: Good afternoon. Senator Lockyer and 
Members of the Senate Rules. 

I'm Gregory Senegal. I'm one of the vice 

1 presidents of the Walden House, which is one of the providers 

2 that is working at the SATF. 

3 We are here to support Warden Fairman because not 

4 only has he provided leadership in bringing together what I 

5 consider to be a very difficult task, but he's done it in the 

6 vision and also within the scope of the legislation as it was 

7 formally adopted by you, Senator Lockyer, some six years ago. 

8 Thank you very much. 

9 CHAIRMAN LOCKYER: No opposition present, I note, 

10 only supporters. 

11 Are there questions? Senator Ayala. 

12 SENATOR AYALA: I'd just like to state that I had 

13 a nice long talk with the Warden. He pointed out that the 

14 program at your institution is not similar to the one at Norco, 

15 which deals with the substance abuse individuals. 

16 This program is for those who are convicted of 

17 other crimes, other than drug abuse, but they are involved with 

18 drugs. So, before they get discharged, they're transferred to 

19 your institution for this final training they get before they go 

20 out in the street. 

21 Did I interpret that correctly? 

22 MR. FAIRMAN: That's correct. Senator. 

2 3 SENATOR AYALA: I wondered why, if it's working 

24 there, why wasn't it initiated at Norco? But those are people 

2 5 who are convicted of drug abuse. That's why they're serving at 

2 6 Norco. The people at your institution are those that are 

27 convicted for other crimes other than drug abuse, but they are 

28 addicted to drugs, so they place them at your institution prior 

to being discharged. 

Is that correct? 

MR. FAIRMAN: That's correct. 

SENATOR AYALA: What's the average stay at the 

MR. FAIRMAN: We're projecting the average stay 
would be between six and twelve months prior to them being 
paroled. We started to program in September, so I think we're 
just beginning to have our first people go out onto parole. 

SENATOR AYALA: And then you have follow-up 
program as well, don't you? 

MR. FAIRMAN: We call it continuing, continuing 
care program where they can be placed into in-patient treatment 
our out-patient treatment under the supervision and aegis of the 
parole agent. 

SENATOR AYALA: That's optional. It's not 
mandatory that they take that training or that — 

MR. FAIRMAN: It's not mandatory at this point in 
time, but we try to encourage them to participate. 

SENATOR AYALA: But you only had, what, four? 

MR. FAIRMAN: We've only had four or five to 

SENATOR AYALA: You don't really have a track 
record yet to see if those folks follow up on that type of 
training beyond the incarceration period. 

MR. FAIRMAN: That's correct, Senator. 

SENATOR AYALA: I think you're doing a wonderful 
job from what I've heard. 


1 Mr. Chairman, I don't have any other questions. 

2 CHAIRMAN LOCKYER: Thank you, Senator. 

3 Could you tell us a little about your experience 

4 thus far in terms of the difficulties or ease that you've had in 

5 recruiting qualified staff? And then where I'm headed is, have 

6 you learned that there's any constraint on us expanding the 

7 numbers of treatment slots in the state prison system because of 

8 the shortage of qualified staff or anything of that nature? 

9 MR. FAIRMAN: Well, I have had the opportunity 

10 since last January to go around at my boss's suggestion to see 

11 other prisons. So, I still, when I go to other prisons, all of 

12 the good people that I see, I'll try to recruit them, to more 

13 appropriately state it. 

14 I think that CDC has started an identification 

15 process of good staff, and you just have to look for them. 

16 Beyond that, I think that some of the things that 

17 the Department is doing in terms of its training programs are 

18 beginning to identify people who, if their behavior continues to 

19 be positive, will be people that can go into these and other 

20 type programs. 

21 With respect to the only problem with having more 

22 people in drug abuse programs is the lack of money, obviously. 

23 CHAIRMAN LOCKYER: If you had more money, could 
2 4 you ramp up significantly? 

2 5 MR. FAIRMAN: If we had more money, I think 

2 6 Department has some of that and has some plans about doing 

27 that. And I think that it would — I don't think that you would 

28 want to ramp up significantly. I think you'd want to gradually 

increase over the period of time so that you could get staff 
trained and used to these types of concepts, and the quality 
does not get, I want to say diluted, too significantly. 

CHAIRMAN LOCKYER: Are you able to tell yet? 
Let's say this budget cycle, we've authorized from four hundred 
now to another thousand beds. I think I'd like to see us get 
close to 50 thousand. That certainly is realistic in terms of 
the number of prisoners that have a problem. 

Maybe that's a way to segue into the Calif ano 
Report and the suggestion that maybe four-fifths or so of 
prisoners in the United States have a serious drug or alcohol 
problem, or that that contributed in some substantial way to 
their criminal behavior. 

I assume ours are like that, that the bulk of 
them have some abuse, substance abuse problem. 

MR. FAIRMAN: Well, that's true in this state and 
nationwide, and it was good to see the report come out. 

The CDC was aware, through its Director a couple 
years ago, that those statistics were, if you will, germinating 
and would come out after they'd been reviewed by all the 
appropriate bodies. 

So, 75 percent, I think, is what we think it 
might be in this Department as the underlying problem. But 
there are other problems like crime time behavior, you know, 
that type of thing, that may not allow every individual to 
participate in it at this point in time. 

CHAIRMAN LOCKYER: Do you have rough sense, of 
the 75 percent, let's say that's 110-115,000 prisoners, what 


1 proportion of those might be potential clients in the substance 

2 abuse section? 

3 MR. FAIRMT^: Senator, I don't have a view of 

4 that because, you know, the scope of just being a warden, I 

5 think that would more appropriate to CDC administrator. 

6 CHAIRMTUsf LOCKYER: But recruitment, how many 

7 staff do you have? 

8 MR. FAIRMAN: We have approximately 900 now. 

9 We found a very interesting phenomenon, if you 

10 will. And that is, the custody staff, more specifically, once 

11 they have gone through the cross training provided by the 

12 University of California San Diego's Medical School, their 

13 Addiction Technology Transfer Center, that, you know, people 

14 pretty much make their minds up that, you know, we'd like to 

15 operate these prisons in a way that allows the individual there 

16 to not come back to prison, and us not having to be so 

17 aggressive every day. That's been one of the most significant 

18 findings I've observed in this short period of time. 

19 The other is the one inmates, you know, the race 
2 problem of grouping. When you look into a substance abuse 

21 program, you see those type of things kind of change, and I 

22 think that some of the staff have told me that that's very 

23 significant. 

2 4 CHAIRMAN LOCKYER: Why is that? 

2 5 MR. FAIRMAN: Well, because of the therapeutic 

2 6 community model. 

27 CHAIR24AN LOCKYER: Just work through their 

28 problems or attitudes? 


MR. FAIRMAN: Right. 

CHAIRMAN LOCKYER: So, you could maybe do what 
you've done this last year a couple more times in the next year 
without asking the Central Office? 

MR. FAIRMAN: Well, let's put it like this, 
Senator. The reason I came to California is because, as I said, 
I have seen this. I've seen it piecemeal. And California 
historically — most of my career's in Illinois — and 
California in the past had been ahead of the curve, so to speak, 
and I thought it leap-frogged back in front with this concept/ 
as it did with building prisons. 

Instead of build like most states, they did come 
up with pretty much a model that saved money, and they pretty 
much knew, and knew what kind of staff. And I thought that was 
very significant in terms of what I've seen in the state I came 
from and other states. 

CHAIRMAN LOCKYER: We're still the pioneer? 

MR. FAIRMAN: I think this significantly put you 
ahead of the game. 

CHAIRMAN LOCKYER: What's been the hardest part 
of the job so far? 

MR. FAIRMAN: There really hasn't been any hard 
thing. I think that the hard part, you know, coming to any new 
operation is basically gaining credibility through your behavior 
as opposed to conversation, but I expected that. 

CHAIRMAN LOCKYER: The sort of evaluation testing 
phase, or whatever. 

MR. FAIRMAN: The Director can appoint me, and 


1 the employees can bring you back. 


3 You mentioned adjusting to the customs, and mores 

4 and procedures of a different system. Are there any that stand 

5 out in your mind as distinct from, let's say, Illinois, or the 

6 ones we ought to learn about? 

7 MR. FAIRMAN: The biggest thing that jumps out in 

8 my mind is basically California, you know, specifically in the 

9 design and the breakdown of inmate population, gives it a lot 

10 more control in terms of what other states have gone through in 

11 terms of the violence. Even though the violence that they have, 

12 I understand it's what you're used to in your own community, so 

13 to speak. 

14 But by the comparison to other states, you know, 

15 I think that if you looked at it, the situation is excellent 

16 here. You have not lost a prison in — I don't know. It 

17 certainly precedes '84, or back to at least '84 that I can 

18 remember. No serious, serious injury, barring some of the 

19 things that we've heard about some of the prisons, but every 

20 state has gone through that and worse. That doesn't make me 

21 accept it and not look for improvements. 

22 The other thing that I think is the continuing 

23 training. Sometimes the first thing that goes away in 

24 budget-crunch time is training. This Department has not given 

25 up on the training, training program, you know, start to cut. 
2 6 CHAIRMAN LOCKYER: For prisoners? 

27 MR. FAIRMAN: For the staff. 

2 8 CHAIRMAN LOCKYER: And others have cut back in 



MR. FAIRMAN: Right. That's the first thing that 
kind of becomes within the person's bull's eye, so to speak. 


SENATOR AYALA: The new grooming standards will 
be kicked in pretty shortly now for the prisoners? 

MR. FAIRMAN: That's correct. 

SENATOR AYALA: Do you anticipate any problems 
with that? Have you had any problems up to now? 

I know at Folsom they did. 

MR. FAIRMAN: You know, just at this prison, I 
don't anticipate any problems. I mean, obviously there will be 
a small percentage of people that may have some concerns, like 
Native Americans, Rastafarians, but basically the way the plan 
is set out by CDC, I don't think we'll get into a big problem in 
terms of any kind of physical confrontation because the 
application is going to be pretty laid out pretty well. And 
also, it's based on sound correctional philosophy, and that is 
the security issue. 

SENATOR AYALA: What about the elimination of 
tobacco for the inmates? That's coming next, I understand. 
Will that create a problem at your institution? 

MR. FAIRMAN: Any change creates problems. I 
think that it's how you implement the change. 

I think that what we will have is, basically 
we'll have to have like programs to deal with people who are, 
you know, if you will, being put in a position of having tobacco 
taken away from them. And I think there's a lot of programs. 


1 both medical and psychological/ that you can have, you know, 

2 exercise programs that you can have to cut off a substance. 

3 SENATOR AYALA: Do you think that's a good thing 

4 to do that/ to remove use of tobacco from the prison inmates? 

5 MR. FAIRMAN: Well, you can look at it on two 

6 levels. You know, you look at it on the level of somebody's 

7 choice/ or may not, but a person in prison doesn't have all the 

8 choices. You look at the cost of medical. So, I mean/ there 

9 are arguments on both sides of this case for it. 

10 I don't have any disagreement with it. 

11 CHAIRMAN LOCKYER: We've been joined by Senator 

12 HugheS/ and I believe Senator Ayala -- 

13 SENATOR AYALA: I'd like to move the 

14 confirmation. 

15 CHAIRMAN LOCKYER: — to recommend confirmation. 

16 Well/ I only want to just give you warning that I 

17 am a supporter of your confirmation. 

18 I hope this program can get to he, before I 

19 leave/ to have a statutory commitment to getting it 

20 significantly larger that it is today. It may take some time to 

21 phase that in and to recruit personnel/ and so on/ but it just 

22 seems to me that if we don't address the underlying drug 

23 problems that so many prisoners have got/ we're asking for a 

24 recycling of criminals and costs that are associated with that/ 

25 and a lot of victims and ruined lives. 

2 6 So, just keep thinking ahead about what would you 

27 do if someone said/ gee, you've got to have 5/000 more next 

28 year, or whatever number. I make up that number, but it's going 


to be big, so get ready. 

MR. FAIRMAN: I think we look for the 

CHAIRMAN LOCKYER: Senator Ayala has that motion 
to confirm. 

Call the roll/ please. 

SECRETARY WEBB: Senator Ayala. 



Ayala Aye. Senator Brulte. 

Brulte Aye. Senator Hughes. 

Hughes Aye. Senator Lewis. 

SECRETARY WEBB: Lewis Aye. Senator Lockyer. 

SECRETARY WEBB: Lockyer Aye. Five to zero. 
CHAIRMAN LOCKYER: Thank you and good luck. 
MR. FAIRMAN thank you. 

CHAIRMAN LOCKYER: Mr. Laurie. We have 
Mr. Laurie, Energy Resources Conservation and Development 

Do you want to start with any opening comment? 
MR. LAURIE: Thank you, Mr. Chairman, very 

Mr. Chairman, Senators, my name is Robert Laurie 
I've had the previous privilege of being confirmed by the 
Legislature as a result of my appointment to the Contractors 


1 State License Board. However, I never had the pleasure of 

2 appearing in front of this body. Needless to say, I am very 

3 happy to be here. 

4 As a first order of business, I would like to 

5 express my appreciation to your very professional staff, 

6 Mr. Chairman. My time period for confirmation was somewhat 

7 constrained. I think without the cooperation and 

8 professionalism of your staff, I may have had timing problems, 

9 and I'm deeply appreciative of that. 

10 Mr. Chairman, you do have my resume before you. 

11 Under the Warren-Alquist Act, the position to which I have been 

12 appointed is required to be filled by an attorney with 

13 administrative law experience. I believe a review of my resume 

14 will indicate that my working experience has been compatible 

15 with that requirement. 

16 Also on my resume, Mr. Chairman, is a listing of 

17 the committees and my areas of responsibilities under which I 

18 have been acting for last eleven months. 

19 There is a lot to talk about. We are involved in 

20 the implementation of AB 1890, the restructuring legislation 

21 which was unanimously passed by the Legislature. We are dealing 

22 with nuclear transportation issues. We are dealing with 

23 internal reorganizational issues consistent with the dynamic 

24 change in the energy world. There are NTB issues which are 

25 being discussed as I speak before you today. 

2 6 I am inclined, as an attorney, Mr. Chairman, and 

27 almost compelled to want to discuss these and the many other 

28 issues that are of interest to you as well as my Energy 


Commission. However, in light of your time constraints, and I 
would anticipate, in light of my desire to obtain confirmation, 
I will pass on further comments as part of my opening 

I would, however, like to close by taking this 
opportunity to offer my appreciation to my fellow Commissioners 
and my extraordinarily talented staff at the Commission for 
their support for the last eleven months. 

And finally, Mr. Chairman, I recognize that it is 
the Office of the Governor, and it is this Legislature that is 
the true representative of the people. Thus, my honor of being 
appointed and reappointed by the Governor, and also my honor to 
appear before you today to seek your advice and consent for that 

The coming year is going to be a challenging one, 
an exciting one, Mr. Chairman, and I for one am looking forward 
to it. I seek your support. 

I will close and indicate my availability to 
respond to any questions that you may have. 

Thank you, Mr. Chairman. 


Is there anyone present who would wish to comment 
either for or against the nomination? 

Seeing none, I'll ask if Members of the Committee 
have any issues they'd wish to raise? 

When were you appointed? 

MR. LAURIE: Originally appointed in February, 
1997. Reappointed January 7th, I believe, of this year. 


1 CHAIRMAN LOCKYER: Senator Brulte. 

2 SENATOR BRULTE: Have you been in communication 

3 about the ISO and the PX leadership? 

4 MR. LAURIE: Not directly, Senator. I have been 

5 in communication with the oversight board. 

6 SENATOR BRULTE: Do you have any information for 

7 us on when we will start up, and if March 31st is the real date? 

8 MR. LAURIE: My understanding, Senator, is that 

9 there is a great deal of confidence that that is a good date. 

10 Prior to startup, there must be a 15-day notice 

11 to the Federal Energy Regulatory Commission, and before that, 

12 there is additional testing. 

13 Those individuals that are involved in this 

14 process currently have a good deal of confidence. Knowing the 

15 capabilities of these individuals. Senator, I share their 

16 confidence. 

17 CHAIRMAN LOCKYER: It doesn't relate to this 

18 task, but it was interesting to me to see all the comment from 

19 the directors of the Power Exchange, and ISO particularly, 

20 saying, well, the Legislature just made up a date for operation 

21 of the system, so somehow that was political, was the claim. 

22 I guess those guys don't have to come in for 

23 confirmation. If they show up, I'm a no vote after that start. 
2 4 SENATOR BRULTE: At the risk of being Dick Floyd, 
25 those appointments weren't made in a timely manner, either. 

2 6 CHAIRMAN LOCKYER: The whole system — 


28 CHAIRMAN LOCKYER: They seem to think somehow — 


the comment was sort of critical of the legislation, that 
somehow there was this date chosen that was inaccurate. 

Meanwhile, they seem to continue to develop 
separate and independent systems that couldn't communicate with 
each other, which strikes me as, perhaps, fundamental to their 

Our notes, Mr. Laurie, suggest that the spike in 
gasoline prices that occurred in California subsequent to 
reformulated gas being introduced in ' 96 went unpredicted by the 
Commission. Then there's some newspaper story somewhere said 
well, they really knew, the staff knew, but they didn't tell the 
Commissioners . 

Can you help us understand anything about that 
issue? Should it have been noticed? Is that part of the 
responsibility, to forecast those kind of developments in 

MR. LAURIE: Certainly one of our tasks, 
Mr. Chairman, is to seek to accomplish that forecasting. 

Not being present for that particular analysis, I 
cannot convey any personal information. 

I can, however, convey how I believe things are 
done at the Commission. 

Either I am terribly naive, which, perhaps, I've 
been accused of at times, but I do not believe that either the 
staff or any Commissioner that was on the Commission at the time 
would have had any cause to not bring before the public, before 
this body, the truth as they would have known it. 

Now, we all know that there are a number of 


1 causal factors relating to the price of gasoline. The 

2 reformulated portions of our gasoline and prices related thereto 

3 is only one element of that. 

4 So, to the extent that there was any missed 

5 point, certainly that is watched on a regular basis, and that 

6 area is certainly an area of interest to me. 

7 But I can assure this body that had any 

8 information been known, it would have been revealed because, 

9 sir, that is our job. 

10 CHAIRMAN LOCKYER: Other questions? What's the 

11 pleasure of the Committee? 

12 SENATOR AYALA: Can I ask a question regarding 

13 deregulation. 

14 Is that at this point going according to what was 

15 intended, were the last cost for the energy to the consumers out 

16 there? Or, it will end up that the small business and consumers 

17 be subsidizing the large consumers? 

18 MR. LAURIE: Thank you. Senator. 

19 There are hundreds of professional economists 

20 that analyze that question on a daily basis. 

21 If I were speaking to single residential 

22 consumers, I would indicate that, as I am, I would indicate that 

23 I am simply going to have to wait and see what ultimately the 

24 free market does to my electric bill. 

25 Certainly when this body was contemplating the 

26 restructuring process, there were many critical issues, 

27 including the high cost to all consumers of electricity, and 

28 most notably, our industries, which were causing industries to 


leave California in large numbers. 

I think the at least temporary benefit available 
to consumers in the reduction will be helpful. What ultimately 
will occur -- and there are a lot of folks around who get paid a 
lot of dollars to anticipate and forecast the free market 
system, and certainly we have individuals within our Commission 
that are doing the same — and as tomorrow occurs and the year 
after that occurs, we will certainly be in a better position to 
report to you as to what our anticipations are in that regard. 

SENATOR AYALA: Thank you. 

CHAIRMAN LOCKYER: Senator Hughes. 


CHAIRMAN LOCKYER: Senator Hughes made a motion 
recommending confirmation. 

May I substitute the prior roll? That will be 

the order. 

to hear from. 



Thank you, sir. 

MR. LAURIE: Thank you very much. 

CHAIRMAN LOCKYER: Mr. Mallory is our next person 

Good afternoon. 

MR. MALLORY: Good afternoon. 

CHAIRMAN LOCKYER: Do you wish to start with any 

MR. MALLORY: Yes, I'll start with a short 

My name is Richard Mallory, the Director of the 
Department of Housing and Community Development. 


1 I have been a Californian since 1973. I sort of 

2 consider Fresno to be my hometown in California. I was married 

3 there in '74, and graduated from California State University at 

4 Fresno in 1975, and all my children were born there in Fresno. 

5 So, I consider that to be my hometown. 

6 I have lived here in Sacramento since 1986. I 

7 moved here when I was appointed to the position of State 

8 Director of Farmers Home Administration, a federal branch of 

9 USDA which was involved with lending in housing, rural housing 

10 primarily, farming and community development. I think that is 

11 probably the most notable part of my resume. 

12 You may want to take a look at it as you scan 

13 through, but I had spent six-and-a-half years involved in that 

14 program, which really loaned and guaranteed loans in excess of 

15 $100 million a year in rural housing in California. A lot of 

16 the farm labor housing that is constructed here in the state was 

17 a result of a partnership between Farmers Home Administration 

18 and HCD. And I was real pleased with that. 

19 I think if there was one notable accomplishment 
2 throughout my term of service at Farmers Home Administration, 

21 I'm real proud of the resources that we were able to bring to 

22 bear in terms of making affordable housing here in the state. 

23 You probably note that in 1993, I left that 

24 position and worked as a consultant in the private sector in 

2 5 management consulting. I had worked with Sacramento County, and 

2 6 worked with a number of private and nonprofit entities in 

27 consulting and helping them to develop management systems. 

28 There are several things, the reasons that I'm 


real pleased to be in the position that I'm in and would like to 
continue, I obviously have a personal background in housing. 
I have an interest in issues, and I have a belief that I can 
contribute to the welfare of our state. 

People who know me would tell you that I believe 
in treating all people with dignity and respect. I believe in 
providing fair and equal treatment for all people and all 
groups. I listen carefully before I act. I always look for 
both sides of issues. I'm real strong on trying to build 
consensus wherever that's possible. In more cases than not, 
that is possible. And I believe real strongly in exercising the 
power the official office with great dignity and respect. 

It has been an honor to serve this state for the 
past year. I would ask your support to continue in the role of 
Director for 1998. 


Are there questions from Members? 

Let me start — there's a number of issues 
indicated -- but dealing with alien reverif ication process. 

MR. MALLORY: Yes, sir. 

CHAIRMAN LOCKYER: I understand the federal law 
prohibits housing subsidies for undocumented. 

I guess that the question has to do with whether 
we should adopt regulations or wait for the federal government 
to promulgate some. 

Do you have any thoughts about that matter? 

MR. MALLORY: Actually, the federal government 
did publish, on November 17, regulations for use by federal 


1 agencies. They had promised and are past due in a statutory 

2 deadline to provide similar guidance to states and local 

3 entities. 

4 But I think the regulations that were published 

5 November 17 gave us plenty of adequate guidance in terms of what 

6 the Attorney General, the U.S. Attorney General feels is 

7 appropriate. 

8 CHAIRMAN LOCKYER: It points out that 49 states 

9 haven't gone forward to implement. They seem to be waiting for 

10 something more certain than interim regs from the feds. 

11 MR. MALLORY: Well, there's two sides of every 

12 story. I think the one side is that the federal regulations, 

13 the federal requirement was put together as part of the Welfare 

14 Reform package. Part of the Welfare Reform package, as you know 

15 well, is trying to transition people from welfare to work. 

16 And I think that the intent of the law is to try 

17 to help that happen. In other words, people who are eligible 

18 for employment here in the United States probably ought to have 

19 the highest priority for those units. So, I think in that 

20 sense, it probably is going to be helpful to an awful lot of 

21 people. 

22 We do have at least 40,000 Californians on 

23 waiting lists for housing throughout the state, and they deserve 

24 some consideration as well. 

2 5 CHAIRMAN LOCKYER: Senator Hughes. 

2 6 SENATOR HUGHES: I have a question. My question 

27 is about HCD draft regulations that says that every member of a 

28 family must be deemed eligible upon receiving an application for 


a new lease, and again each year after renewing this lease. 

That poses some confusion for me as I look at 
what the federal regs are and what your regs are. 

Then it says that if a family is deemed 
ineligible, the family is rejected for housing or for living in 
this housing, would then have six months to vacate. And there's 
an appeal process that could overturn this and delay an eviction 

But then, when you look at HUD subsidized 
housing, it only requires that all adults must prove eligibility 
and says nothing about this other business, about the other 
adults being eligible, and the possibility of the family being 

Could you sort of the clear that up? 

MR. MALLORY: Sure. I understand what you're 
getting at, and we're trying to be very sensitive to the people 
that are in units now. We are definitely trying to be very 
consistent with what the federal government does. 

I have, obviously, some experience in my USDA 
days, that we administered a housing portfolio that was 
federally based. 

The comment that you made about an annual 
certification is something that's normally done anyways, because 
the housing is based on income eligibility, so there's an annual 
income eligibility. 

I think when we wrote our original regulations, 
we thought it was best to keep the alien verification that took 
place as part of a routine process, instead of setting up some 


1 extraordinary or adverse process. We just figured the easiest, 

2 simplest way was to, on an annual income verification, to ask 

3 for either legal citizenship status or nationality status. 

4 I said in my opening remarks that we have taken 

5 pains to listen to all groups and try to develop things that are 

6 consistent with as many requirements as we can. We try not to 

7 be disruptive. I think we tried that in our initial regs . We 

8 had workshops with advocate groups and housing groups prior to 

9 even writing our draft regs. And it was never really brought 

10 up that that would be much of a major problem until after the 

11 draft regs were published. 

12 When they were, in fact in the last hearing we 

13 had -- we had a series of three hearings on the regulations — 

14 in the last hearing we held, it was brought up that there may be 

15 a number of instances where we would, in effect, be denying 

16 benefits to citizens because perhaps one member of a household 

17 would be ineligible. 

18 So, we are actively looking at some alternatives, 

19 perhaps as HUD does. I understand they just adjust the rent for 

20 ineligible recipients and leave it at that. So, that would be 

21 one option that we are definitely going to look at before we 

22 republish revised regs for implementation. 

2 3 SENATOR HUGHES: When are you planning on having 

24 your regs revised for implementation? 

25 MR. MALLORY: We are actively working on them 

26 now. I think last hearing we had was November 13, and we got 

27 over 100 comments, I believe, so we are going through and 

28 analyzing those comments. 


I would presume maybe within four weeks we could 
republish something. 

SENATOR HUGHES: Now, I get confused on what 
happens to those properties that are jointly funded by HUD and 
HCD, and they have one set of regs, and you have another set of 
regs? How do you rectify all of that? 

MR. MALLORY: That won't happen. In our regs, we 
identify that any existing federal process for verification will 
be recognized. We do not want to create complexity or problems 
for housing operators. We just simply wanted to have a set of 
verification process in place for every given project. 

SENATOR HUGHES: Then are you going to be picking 
up on what HUD's eligibility requirement is when it requires all 
adults to prove their eligibility, not children, in this other 
instance? Are you going to try to turn it around that way to 
clarify it, and then make it compatible with the fed? 

MR. MALLORY: I cannot tell you right off what 
we're going to do because we're still looking at them. 

Part of the whole legal issue, I think we started 
out saying that it was more or less a contract issue. In other 
words, we had a number of people who are jointly sharing a 
household and providing income. 

All the people normally who provide income are 
asked to sign on the lease, so we felt that the most appropriate 
way in our draft regs was to ask for everybody who was signed on 
the lease to verify their citizenship or residency. So 
normally, even in our original regs, that would have excluded 
children. People who are not income earners would have been 


1 excluded. 

2 It's been, again, pointed out to us that perhaps 

3 we ought to treat or could easily treat existing residents 

4 different from new applicants. In other words, for new 

5 applicants, I don't think anybody I've talked to has any 

6 problems with saying every income earner ought to verify 

7 citizenship or legal residency. 

8 But the question is, would it be very disruptive 

9 and create costs that were not equal to benefits to apply this 

10 unilaterally to all existing residents. I think we're thinking 

11 that that's true. 

12 We've also said that we're going to make our 

13 final regs consistent with what the California Housing Finance 

14 Agency does in terms of its regs. So, what we're shooting for 

15 is a -- and what I consider to be good government — a simple 

16 industry-wide standard that doesn't add any complexity or burden 

17 on private operators but accomplishes the purpose of the law. 

18 SENATOR HUGHES: Under the Federal Welfare Reform 

19 law, nonprofit agencies that operate housing projects are exempt 

20 from the requirement that they verify their tenants' 

21 eligibility. In the absence of federal regs, it appears that 

22 this means the tenants generally are exempt from verification 

23 requirements. 

24 Is that true? 

25 MR. MALLORY: The November 17 federal regs that I 
2 6 mentioned earlier do line up with that interpretation, that any 

27 sponsor of a housing project that is a true charitable nonprofit 

28 appears to be exempt. 


We would recognize that in our final regs, that 
they would be exempt. 

I think the stickier question comes in when those 
nonprofits have entered into business arrangements for the 
purpose of securing tax rights and have established limited 
partnerships which are indeed for-profit. And I think feeling 
is that those are probably restricted by the law and ought to be 
subject to verification. 

SENATOR HUGHES: Didn't your original HCD draft 
regulations attempt to circumvent this intent? 

MR. MALLORY: No, I don't think we attempted to 
circumvent it. A lot of these things are fairly legally 

What we attempted to do was say, if nonprofits 
did not have an affirmative responsibility under the law, and if 
they did not have resources to do that, then we as a department 
could offer to take on that role for them. 

We were not sure at that point that that absolved 
them of the legal responsibility. 

I think it's still legally questionable, except 
in the federal regulations it's quite clear that the federal 
regulations state that they are to be exempt. 

I think we will definitely recognize that for the 
purpose of national uniformity and the purpose of 

SENATOR HUGHES: That's the intent? 


SENATOR HUGHES: Can you assure that the tenants 


1 of nonprofits at least might face some less burdensome process 

2 than the tenants of profit-making businesses? 

3 MR. MALLORY: Oh absolutely. 

4 SENATOR HUGHES: How serious and how well 

5 acquainted are you with the unmet needs for affordable housing? 

6 I certainly have a massive problem in my district, and probably 

7 some other Members around this table might have it. 

8 How do you feel about it? Do you believe that 

9 the figures that are published are really valid — 

10 MR. MALLORY: Oh, yes. 

11 SENATOR HUGHES: ~ and reliable? And what do 

12 you think your agency's efforts should be in terms of making 

13 affordable housing available to people? 

14 MR. MALLORY: We are very definitely committed to 

15 trying to expand the amount of housing supply through whatever 

16 means we can possibly do so. 

17 SENATOR HUGHES: What are your plans in that 

18 regard? 

19 MR. MALLORY: We have already initiated a better 

20 information effort to publicize the figures that we speak of. 

21 I, for example, can tell you what I have told many audiences 

22 throughout the state. I don't think it's widely recognized that 

23 between 1970 and 1980, the rent overburden rate within the State 
2 4 of California roughly doubled, and the overcrowding in housing 

25 roughly doubled. 

26 It roughly doubled again between 1980 and 1990, 

27 to the point that, I'm aware. Senator, that in Los Angeles — in 

28 fact, my fear is that by the year 2000, literally 50 percent of 


the apartment units in Los Angeles could be overcrowded by the 
HUD definition. And I recognize that that's not a good social 
environment for California. It's not a good environment for 
families. It's not a good environment for businesses. 

SENATOR HUGHES: Right now, some of these are 
overcrowded merely because there's not particularly one tenant 
in these housing developments, because in many instances, they 
do something called hot-bedding. You know, one family works at 
night; other family works in the day. They take turns 

And the poor children, where there are children 
involved in these units, are evidenced as not having good 
rest. The next day they come to school because they haven't 
slept in a bed. Maybe they have to sleep on the floor, and all 
of these things. It's just a horrifying situation. 

MR. MALLORY: I think, number one, we have to 
publicize the problem. I think because it's not well 
publicized, a lot of communities have not identified it as a 
serious need, but I think certainly we're going to pay the price 
in lots of ways if we don't have, well, supportive family units 
within California, and housing is another integral part of that. 

I know Santa Clara Valley that the industry group 
in Santa Clara Valley has become actively involved in housing 
over the past few years because they've come to identify that 
they cannot attract the people that they want in the industry. 
I think they say something like, they are only successful 
recruiting about one-fifth of the time the candidates that they 
want . 


1 Likewise, the people who work in industries, 

2 especially among the median and below median wages for the 

3 industry, are having to commute many, many miles over to the 

4 Central Valley, basically, to be able to afford housing. So it 

5 even has pollution consequences on it. There's consequences on 

6 demand for road and public transit. 

7 It's a delicate balance, but we've committed to 

8 try to do a variety of things. Number one, get better use of 

9 the resources that exist. That would be largely redevelopment 

10 agencies have, in many cases, significant resources to use. 

11 Being advocates for the best use of housing and for new 

12 resources, I think we've tried to do that both within the 

13 budget process and by working with TCAC and others. 

14 We have manufactured housing, I think, as a real 

15 viable alternative. Just make communities aware of their 

16 housing element requirements so they plan for growth. I think 

17 this is a key piece of the equation. 

18 Basically, we're fighting scarce resources to try 

19 to address a very difficult problem, but I'm committed to do 

20 that. 

21 SENATOR HUGHES: What's your highest priority in 

22 restructuring or resurrecting the housing element process? 

23 MR. MALLORY: My highest priority basically is 

24 just to get a cycle of the process completed in the ordinary 

25 fashion in which it was intended under law. 

2 6 The Southern California area is next by law, by 

27 June 30, '99. Each one of the communities in the Southern 

28 California Association of Governments area is responsible for 


completing a housing element. We've been actively working with 
the Southern California Association of Governments, SCAG. We 
have been having individual meetings with communities. I've 
spoken to the Orange County Planning Association. 

We are trying — we have gone through a 
streamlining process. Staff at HCD has streamlined the housing 
element process to make it easier and less burdensome for local 
communities/ so we're trying to make the process work that 


CHAIRMAN LOCKYER: Other questions? Senator 

SENATOR AYALA: I just have one short question. 

I'm not clear whether you've established that 
regulations will not be formulated to evict eligible candidates 
because members of the family may not be eligible. Has that be 
established that regulations are going to occur in that fashion? 

MR. MALLORY: Are you speaking to the alien 
verification issue? 


MR. MALLORY: We are basically looking at the 
issue. That certainly when we published our draft regulations, 
that was one of the key interest areas of the various groups 
that responded to it. 

We are certainly going to do our best to create a 
less burdensome process than was first proposed in the regs . 
And the manner in which that would happen, we are looking to, in 
the revised regs that would be published perhaps within four 


1 weekS/ establish a two-part process whereby residents within 

2 housing today would have a different standard than those who 

3 could come to us -- 

4 SENATOR AYALA: That's forthcoming? 

5 MR. MALLORY: That will be forthcoming, correct. 

6 SENATOR AYALA: Thank you. 

7 SENATOR LEWIS: Any other questions? 

8 Is there a motion on this confirmation? 

9 SENATOR AYALA: So move. 

10 SENATOR LEWIS: Call the roll, please. 

11 SECRETARY WEBB: I think Senator Lockyer wanted 

12 to ask some questions. 

13 SENATOR LEWIS: I apologize. 

14 Is there anyone in the audience wishing to 

15 testify in favor of the confirmation? 

16 MR. BROWN: Very briefly. Marc Brown, California 

17 Coalition for Rural Housing in California, Rural Legal 

18 Assistance Foundation, here to support the confirmation of 

19 Richard Mallory as Director of the Department. 

20 On a number of occasions over the last year, 

21 we've had occasion to work with him for self-help housing. He 

22 was very effective in supporting our efforts to get the budget 

23 augmented for self-help housing, and that was done and is now 

24 actually part of the Governor's budget. 

2 5 In the farmworker housing grant program, 

26 Mr. Mallory was effective as well at helping us get the 

27 Governor's approval of four-and-a-half million dollars for that 
2 8 very much needed program. 


Last year, following the floods up in the 
Yuba-Sutter area, Mr. Mallory approved our request to take a 
tour of that area with the Director of the Farmers Home 
Administration, and ultimately was helpful in getting funding 
for that program. 

On the alien verification issue, we, I guess, had 
differences with the original regs that came out that were very 
much a concern. The commitment that we understand we have with 
the Director is that the Department of Housing will move 
consistent with California Housing Finance Agency. The Housing 
Finance Agency is waiting to see what comes down in terms of 
federal mandates and requirements on this issue. And as we 
understand it, the Department is in that same position. It 
gives us some more comfort that we're not going to be 
immediately facing eviction of thousands of people out of their 

So in quick summary, our position is support. 
Thank you. 

SENATOR LEWIS: Thank you. 

Next witness. 

MS. MINNEHAN: Christine Minnehan, Western 
Center on Law and Poverty. 

We, too, are here in support of the confirmation 
of Mr. Mallory. We had occasion to work with him very closely 
last year on a piece of legislation that Senator Barbara Lee was 
carrying that would provide a housing program to move welfare 
recipients from welfare to work. It was imaginative; it was 
creative, and Mr. Mallory went out aggressively and worked on 

I 36 

1 our behalf, augmented some of the ideas, and ensured that we 

2 worked closely with the administration. And in fact, is 

3 assisting us in augmenting the 5 million rather than settling 

4 for a dollar amount that really doesn't respond adequately to 

5 this very rapid move from welfare to work. 

6 Mr. Mallory very recently negotiated, tough, 

7 hard, on what constitutes an adequate response to the Employee 

8 Housing Act. It was a tough negotiation, but at the end of the 

9 day, I think we came away with a sense that farmworker 

10 population was indeed protected, and that the Department had not 

11 only been willing to listen to us, but had been willing to 

12 strike language that was in fact workable. 

13 My colleague. Marc Brown, expressed the concern 

14 that I've heard here from the Committee relative to the alien 

15 verification regs. That was, of course, the first issue out of 

16 the Department that caused some real anguish on the parts of 

17 many of the low-income housing providers that we work with. 

18 But we feel satisfied with the Director's 

19 repeated commitment that he will work in step with the 

20 California Housing Finance Agency. We've also worked with Ms. 

21 Terry Parker over there on this issue. We feel some assurance 

22 based on that, that we won't see the wholesale evictions that we 

23 were originally concerned about. 

24 Thank you. 

2 5 MR. HERALD: I'm Michael Herald. I'm the 

26 lobbyist for Housing California, a statewide coalition of 

27 nonprofits and homeless advocates. 

28 We, too, come today to support the nomination of 


Mr. Mallory as the Director of Housing and Community 

I do want to say, though, that my board did wish 
me to express that we do have some concerns. You've voiced many 
of them already, particularly the immigrant verification 

We are pleased by the movement of the Department, 
however, in the direction of our stand on these regulations, and 
think that progress has been made, and we look forward to the 
release of the next version of these regulations. 

Two other issues, I just quickly want to note for 
the Committee, that have been of some issue of concern for us. 
One is that the Governor's position not to continue the use of 
National Guard Armories as winter shelters. 

I want to note, though, for the record that when 
the Legislature, by a two-thirds vote, passed an authorization 
of $1 million to fund those armories through the Department's 
Emergency Housing Assistance Program at a very critical 
juncture, leaving less than a month to get those armories up and 
open, get the contracts out, the Department was able to 
accomplish that task. I think that's a credit to Mr. Mallory 
and his insistence that those funds get spent and used in a very 
quickly and important fashion. 

However, we would like to see the Director and 
the Department to take a more long-term role in helping local 
communities and the state figure out permanent solutions and 
alternatives for those armories. And to date, we've seen 
nothing in the Governor's budget or any other matter that would 


1 suggest that the Department is going to be taking a lead role in 

2 that matter. 

3 Then lastly, the Department administers another 

4 federal program called HOME, which is a federal — it's a 

5 funding stream from the federal government. The Department 

6 manages this program for rural areas of California, those cities 

7 that don't get direct funds. 

8 There's one issue that's been of nagging concern 

9 to some nonprofits, and that is the Department's long 

10 requirement that proceeds from loans and grants that go out to 

11 nonprofit organizations, when they're returned and repaid by 

12 people in the community who purchase housing, that those funds 

13 would have to be returned to the state rather than to stay 

14 locally with the nonprofit organization, as was intended by 

15 Congress and is provided by in federal law. 

16 So again, we would encourage the Department to 

17 continue to work with us on that, but we do support the 

18 nomination of Mr. Mallory and urge you to confirm him. 

19 MR. CARTER: Mr. Chairman and Members, Art 

20 Carter representing the California Pipe Trades Council. 

21 I might remind you of a line out of Macbeth 

22 [sic], we come here neither to praise nor bury Caesar. 

23 We are here neither in opposition nor support of 

24 Mr. Mallory. As the Committee considers his confirmation, there 

25 is one issue that California Pipe Trades Council has been long 

2 6 involved in. I refer to the issue of, generically, plastic CPVC 

27 pipe. 

2 8 It is currently the subject of an environmental 


impact report process by the Housing and Community Development 
Department, which Mr. Mallory heads. 

During recess, we had a working meeting with 
Mr. Mallory and his staff. Rather than my doing so, I'm going 
to call upon an associate of mine, Mr. Dan Cardoza, who's an 
attorney for the Pipe Trades, to very briefly outline a couple 
of the procedural questions that are of deep concern to us. 

Mr. Cardoza. 

MR. CARDOZA: Thank you, Mr. Chairman, Senators. 
Dan Cardoza, speaking on behalf of the Pipe Trades Council. 

As Mr. Carter indicated, the Pipe Trades have a 
long-standing concern with regard to the public health and 
worker health issues associated with CPVC pipe. The studies 
that were prepared in the previous EIR process, back in 1989 by 
HCD, confirmed that there were indeed some serious public and 
worker health issues with respect to potential drinking water 
contamination and worker exposures to toxic and carcinogenic 
solvent chemicals. 

Those issues remained unresolved in the prior EIR 
process because in 1994, the plastics industry withdrew funding 
to complete the studies, and HCD terminated the EIR process. 
The next year, in 1995, Governor Wilson met with Goodrich 
officials in Ohio during the Governor's presidential campaign. 
And he was asked in those meetings to approve CPVC pipe by what 
the Goodrich officials described as "edict", and within one 
month of that request, the Governor directed HCD to adopt 
emergency regulations approving CPVC pipe. 

That approval was later overturned by the courts 


1 for failure to complete the EIR process, and HCD is now under 

2 way with a new EIR process to complete the earlier studies 

3 essentially by court order. 

4 Despite this fact, we're concerned because the 

5 Governor and administration officials are repeatedly on record 

6 indicating that they do not believe that there are legitimate 

7 health and environmental issues associated with the pipe. 

8 We're concerned that this attitude may result in 

9 less than a thorough review, and that concern is reinforced by 

10 internal HCD documents which, in our view, indicate a strategy 

11 to fast-track the process and not to allow the analysis to 

12 interfere with the stated objective, to approve CPVC pipe by the 

13 fall of this year. 

14 HCD had confidential strategy meetings with 

15 Goodrich representatives in which they decided that, unlike the 

16 previous time, there would be no industry funding for the EIR. 

17 The EIR process would be funded by the taxpayers. That there 

18 would, unlike the prior time, there would be no use of outside 

19 independent consultants, but all of the work would be done 

20 in-house. 

21 SENATOR HUGHES: Might I ask the witness a little 

22 question. 

23 You know, I remember it was the '80s, early '80s, 

24 when they started talking about plastic pipes being much safer 

25 and much better. 

2 6 Is there any plastic piping installed now, or 

27 approval for plastic piping installed in residential facilities 

2 8 now? 


MR. CARDOZA: There were some limited approvals 
authorized by a bill authored by Assemblyman Baca in 1995 which 
allowed a two-year window for approval of CPVC installations in 
jurisdictions which could demonstrate that there were problems 
with the corrosion of copper pipes, but the bill also required 
a set of worker safety protections, as well as drinking water, 
flushing protections. 

SENATOR HUGHES: Are these purifiers that attach 
to the faucets, do they guarantee any safety? You know, I'm 
thinking even in a building, it could be a commercial building 
where construction workers would want to get a drink of water. 
I'm not talking about just the water fountains. 

Are these purifiers any guarantee that it's going 
to make the water safe for drinking, because everybody 
advertises that these things are okay. 

MR. CARDOZA: In the view of our technical 
consultants, the type of chemicals that we're talking about 
leaching into the drinking water, especially the pre-occupancy 
water at the construction sites that you're referring to, are 
not addressed by the commercial filters that are available in 
the marketplace. Usually we're talking about chloroform and 
solvent chemicals that are not filtered out by the kind of 
coarse filters that are available in the market. 


SENATOR AYALA: Somebody get me on board. I 
don't understand. 

The Department of Housing and Community 
Development is to expand housing opportunities all 


1 Californians. 

2 Where do you get the authority to get involved 

3 with material that's going to be used on housing? I mean, 

4 that's up to the Building Code, and the inspectors, and local 

5 government. They're the quality control people at the local 

6 level. 

7 How do you get involved with that? I don't 

8 understand this pipe business coming up at the last moment here. 

9 MR. MALLORY: Statutorily, we are required to 

10 make recommendations to the Building Standards Commission on 

11 changes to the California Building Codes. 

12 SENATOR AYALA: You don't enforce those 

13 regulations. 

14 MR. MALLORY: No. The local entities enforce 

15 those. We merely make recommendations to the Building Standards 

16 Commission. 

17 SENATOR AYALA: I don't understand the pipe 

18 business coming up at the last minute. 

19 MR. MALLORY: Would you like me to address that? 

20 SENATOR AYALA: I was under the impression that 

21 those were created elsewhere, and you would either support or 

22 not support for enforcement at the local level. 

23 Quality control of housing is the responsibility 

24 of local governments. 

25 MR. MALLORY: Correct. 

2 6 SENATOR AYALA: Not your Department or anybody 

27 else's. 

2 8 I don't know why the pipe business got involved 


here at the last minute. 

MR. MALLORY: The local entities operate under 
building standards adopted by the State of California, adopted 
by the Building Standards Commission. 

There are several — and I'm certainly not an 
expert on this subject. Senator, but I can tell you that I'm 
aware that there are a number of national bodies, professional 
bodies that make code recommendations. And the recommendations 
come to the state, and they're adopted in a triannual process. 

The agency that is charged with reviewing most -- 
although there's probably about seven different departments that 
preview portions of building codes -- we are charged with 
reviewing most of the construction standards, of which pipe 
would normally be part. 

SENATOR AYALA: You can make recommendations. 

MR. MALLORY: Right. 

SENATOR AYALA: But you're not in the business of 
enforcing any of those regulations. 


MR. CARDOZA: Mr. Chairman, I could wrap up very 

In response to our criticisms that the Department 
doesn't have the in-house expertise to conduct other than a pro 
forma review, the Department's indicated that it would rely on 
state experts. 

We're concerned that without identifying who the 
state experts would be, how their time would be funded in the 
current state budget, whether or not the state staff people 


1 would be allowed to review the underlying original technical 

2 documents and not just review drafts of the EIR, without 

3 assurances that the state experts would review and respond to 

4 the comments, the public comments submitted on the EIR, we're 

5 concerned that there wouldn't even be the appearance of a 

6 legitimate and meaningful review process. 

7 In our view, the administration may very well 

8 approve CPVC pipe this year, but we don't think that approval 

9 should come until there's been a genuine, meaningful analysis 

10 and full public disclosure of the issues and risks associated 

11 with the pipe. 

12 Thank you very much. 

13 SENATOR BRULTE : I just want to be real clear 

14 here. 

15 You mentioned that Governor, while he was running 

16 for President, met with Goodrich. That was just to give us a 

17 point of reference in time, was it not? You weren't suggesting 

18 there was anything related there? 

19 CHAIRMAN LOCKYER: I would suggest it if he. 

20 doesn't. 

21 SENATOR BRULTE: I'd like to hear it on the 

22 record because my follow-up question will be, Mr. Baca wasn't 

23 running for president when he introduced legislation to do what 

24 you think the Governor wants to do. 

2 5 CHAIRMAN LOCKYER: I don't know if you've seen 

26 it, but the Goodrich letter, which we have a copy of, starts by, 

27 "It was delighted to meet you at your fundraiser in Ohio," and 

2 8 we have this concern that was policy developed by Democrats that 


preceded you, and it's unions that prevent a change that allow 
us to market plastic pipe; and we'd like you to change it by 

SENATOR BRULTE: I understand, though I'd still 
like to ask the witness what — 

MR. CARDOZA: I believe, Senator, that the 
chronology speaks for itself. 

SENATOR BRULTE: Now, you don't believe the state 
employees are qualified to do this? 

MR. CARDOZA: We believe that there is expertise 
in state government; however, the Department has not indicated 
who these experts are. 

Our concern is that there be a genuine process. 
We believe if the experts in state government are specifically 
identified, if there's funding available to indicate that they 
will in fact have the time to devote to this, if they will be 
allowed to review the underlying technical documents, if they 
will review the public comments and respond to them, then we 
believe that there is adequate expertise and that would be 
indicative of a meaningful review. 

SENATOR BRULTE: So, you don't necessarily want 
us to go outside and privatize this EIR function? 

MR. CARDOZA: If we could dictate the process, we 
believe that outside independent consultants are the best way to 
assure an objective and careful analysis. We think the 
Department's committed to doing this as an in-house process, and 
we're not opposing that. 

SENATOR BRULTE: You think outside employees 


1 doing those studies are the best? Is that just related to pipe, 

2 or is it to every other function of analysis of state 

3 government? 

4 MR. CARDOZA: I think — I mean, a typical way 

5 that an EIR process is conducted, especially in a highly 

6 technical area like this one, is that the applicant funds the 

7 technical studies which are typically prepared by outside 

8 technical consultants. That's the process the Department 

9 followed in 1989. This time they're not following that process. 

10 We are just seeking assurances that there will be 

11 a genuine and careful review of this by state experts. 


13 CHAIRMAN LOCKYER: Do you have a tentative 

14 deadline for concluding this debate on plastic pipe? 

15 MR. MALLORY: I wouldn't say concluding the 

16 debate, but hopefully completing the EIR. 

17 The EIR is projected to be finished by about 

18 April, maybe about April 30th. It would be in draft form, and 

19 then our timeline if — again, it depends on the analysis. If 

20 we do indeed do a review of the professional studies that are 

21 available, and I know that the Pipe Trades Council is 

22 particularly concerned with worker safety, much more so, I 

23 think, than just the quality of the drinking water, but in 

24 either case, we are going to review all the available 

25 professional studies on that. 

26 If we assess that there is significant debate or 

27 risk that has not been investigated, then at that point we would 
2 8 make a determination whether we needed additional studies of any 


kind and who would be appropriate to do that. 

If we do not make such an assessment, it's 
possible that the final EIR would be ready this fall, which I 
might say is a timeline that's consistent with professional 
standards. It's not faster nor slower. It's considered to be 
an industry standard for preparation of an EIR. 


MR. PATTON: Mr. Chairman and Members, Gary 
Patton for the Planning and Conservation League. 

We're appearing on this issue as well. We 
actually were one of the litigants in the earlier lawsuit that 
Mr. Cardoza just mentioned. We're quite concerned about the 
consumer safety, water quality issues relating to plastic pipe. 

As all Members of this Committee know, as persons 
come before you for confirmation, you often use the opportunity 
to delve a little bit deeper into specific programs of specific 
concern to Members of the Committee, as Senator Hughes was just 
doing about one that I personally care about as well. 

This is one we'd like to alert you to. We do 
think it is important that the EIR process really get to the 
bottom of the issues, because the whole problem that led to the 
litigation before was a truncated EIR process that wasn't 
exhaustive enough so that at least we, in the environmental 
community, and certainly the labor folks involved, didn't 
believe it was a fair evaluation. 

And we're hoping you can get a commitment from 
Mr. Mallory in connection with his confirmation to a really 
written down set of procedures: who is going to do the work; 


1 how long is it going to take, in terms hopefully of an 

2 accelerated -- of a process that would result in the deadline 

3 he's talking about, but with opportunities for comments, for 

4 instance, for say 60 days, giving us a real chance, looking at 

5 what comes out of the Department initially, to have a full and 

6 fair comment period. 

7 That's the kind of thing I'm asking you to 

8 investigate as part of your Committee review. And really, we're 

9 taking no position on Mr. Mallory, and we appreciate some of the 

10 good testimony we've heard this afternoon. 

11 Thank you for your interest in this 

12 issue. 

13 CHAIRMT^ LOCKYER: Mr. Mallory, you're confident 

14 that the EIR will be done in a way that comports with state 

15 standards, and that it will be a professional workup that's 

16 complete? 

17 MR. MALLORY: You bet I am. 

18 I might say that based on Mr. Cardoza's comment, 

19 I'd like to say that I was not here at the time that emergency 

20 regs were requested nor issued. I was not serving as Director 

21 at that time. 

22 We did have some discussions. I did come aboard 

23 right after the court decision on requirement of an EIR. I did 

24 participate in the discussions about whether that should be 

25 appealed or not. I did recommend that it not be appealed, that 
2 6 we complete the EIR. The Governor agreed with that. 

27 I am committed to a fair process. I have not had 

28 any, nor has any of my staff had, confidential strategy sessions 


with Goodyear [sic] . I have had as many conversations with -- 
and I believe this is true of my staff as well — with anybody 
representing Goodrich, rather, the manufacturer of the pipe, 
than as I have with Pipe Trades Council. 

So, we intend and are committed to having a very 
fair and open process that complies with the law. 

And frankly, in regard to the last comment, there 
will be a fair and open comment period when the EIR is 

CHAIRMAN LOCKYER: So, you have the draft that 
gets generated, and then there's some internal review. Is that 
what happens next? 

MR. MALLORY: There would be an internal review 
prior to the issuance of the draft EIR with whatever 
recommendations we feel is appropriate. 

CHAIRMAN LOCKYER: So, that's happening now? 

MR. MALLORY: Correct. Well, the draft 
recommendations are being put together. 

CHAIRMAN LOCKYER: I don't understand the time. 
You have your internal review before the draft EIR is 

MR. MALLORY: Staff basically completes the 
assessment of risks and review of professional materials. They 
present to me a recommendation, which I review for technical 
completion, for its merits, for compliance with the requirements 
of the law, and then I would issue a recommendation on the draft 
basis. At that point it is recirculated to the interested 


1 CHAIRMAN LOCKYER: You just mentioned that's late 

2 April? 

3 MR. MALLORY: That would be a target, yes. 

4 CHAIRMAN LOCKYER: So tell me, when do those 

5 different steps occur? Have you gotten the staff technical 

6 counsel yet? 

7 MR. MALLORY: Yes. We have a lead resource 

8 person on the EIR, and that person working literally full-time 

9 on the project now. 

10 CHAIRMAN LOCKYER: Are there other state experts 

11 that are associated with that analysis? 

12 MR. MALLORY: Not that have been spending much 

13 time with it, but yes, there are other state experts involved. 

14 CHAIRMAN LOCKYER: But principally that one? 

15 MR. MALLORY: Principally the one person. 

16 CHAIRMAN LOCKYER: Would that person also look at 

17 the professional literature on the topic? 

18 MR. MALLORY: Correct. 

19 CHAIRMAN LOCKYER: Any other underlying studies, 

20 or whatever might be associated with the risk assessments? 

21 MR. MALLORY: Correct. 

22 CHAIRMAN LOCKYER: You make a recommendation in 

23 late April, and then it recycles through the world of comment? 

24 Is that the next step? 

2 5 MR. MALLORY: Then it's subject to public comment 

2 6 again, yes. And then all the comments would have to be 

27 responded to in terms of a final EIR. Analyzed and responded 

28 to. 


CHAIRMAN LOCKYER: How long will the public 
comment period last? 

MR. MALLORY: You know, I'm not sure of that. I 
believe it's 60 days, but I would have to get that answer back 
to you. 

CHAIRMAN LOCKYER: Our note suggests that it's 
often 45, but we would urge 60 on you just as matter of this 
complexity. That 15 days probably isn't too much of a delay. 

MR. MALLORY: Thank you. 

CHAIRMAN LOCKYER: If you'd consider that, 

Are there other questions? 

Break down your time. How much of the day, 
month, or whatever, do you spend with different tasks that 
relate to pipe or other associated matters? 

MR. MALLORY: Pipe is pretty small. 

CHAIRMAN LOCKYER: Affordable housing, you know, 
mobilehome issues. Can you break it down in any way to give us 
a picture? 

MR. MALLORY: Boy, I've been spending a lot of 
time with trying to do some staff development. We are involved 
with trying to build a team-based organization, so we've really 
been spending a lot of time trying to get focused on our key 
processes, and doing things like flow charting, of which we've 
had some pretty notable success. 

So, I would say I've probably been spending about 
25 percent of my time just on building the organization as an 
unit and building the teamwork. 


I would say probably next in order, we're working 
on trying to be leaders and policy makers for housing, for 

3 housing resources. TVnd we are spending a significant amount of 

4 time on trying to communicate need and discuss with communities 

5 various options that exist. We are looking at — you heard the 

6 comment about the Home Program. We are certainly looking at the 

7 Home Program and RDAs, best use of funds in those two 

8 activities. 

9 I would say in what we call the Codes and 

10 Standards Unit/ which is manufactured housing, we've had a lot 

11 of concern about the amount of time that has taken in terms of 

12 title transactions, and we've spent a fair amount of time at 

13 that. 

14 I would say things like the actual code adoption 

15 process and things like plastic pipe are probably easily less 

16 than ten percent of my time. 

17 CHAIRMAN LOCKYER: Homelessness? 

18 MR. MALLORY: Homelessness is within the program 

19 availability area. I would tell Mike Herald, who was concerned 

20 that we provide some leadership there, that's certainly on our 

21 agenda for the next year. 

22 CHAIRMAN LOCKYER: There seems to be some worry 

23 about the mobilehome park inspections being principally the 

24 responsibility of HCD rather than local agencies, whether it's 

25 done adequately or well in a cost effective way. 

2 6 Have you had a chance to assess that program? 

27 MR. MALLORY: Yes, we have. I am a strong 

28 believer in getting input from people who are directly involved 


with the program. I was, in January, went to a meeting of the 
Western Mobilehome Park Owners Association. I spoke to the park 
owners. We ended our survey and said, what do you think? Is 
this thing a valuable process? What do you like? What don't 
you like? What can we do differently? 

This Saturday, if I'm confirmed, I'm going to go 
visit with the Golden State Mobilehome Owners League and do the 
same thing — those are residents — and have same discussion. 

I think there has been a significant amount of 
concern, but what I'm hearing is that everyone feels that — 

CHAIRMAN LOCKYER: You can go Saturday whether 
you're confirmed or not. 

[Laughter. ] 

MR. MALLORY: But in any case, we are going to 
ask them that. And what I've heard initially is that everybody 
thinks it's a good and valuable service. They would each like a 
little bit more attention to it from their own perspective, and 
we're going to attempt to do that in the next year. 


MR. CARTER: Mr. Chairman, Mr. Mallory's comments 
are, frankly, helpful to us. And we met with him and his staff 
last week, so we think he's very helpful. 

There are two things, however, I would appreciate 
you're keeping in mind, at least in writing to the Committee. 

First, that the EIR comment period would be for 
60 days. 

Secondly, and much more important to us, the 
names of the actual technical experts that HCD is using in the 


1 various agencies to provide the review. That is important to us 

2 because, as he's indicated/ the HCD opposition to doing an EIR 

3 preceded him. We do want to be sure that the process is using 

4 technical people so that we can know this. 

5 We met last week. Unfortunately, he refused to 

6 give us the names. I find that kind of amazing because in the 

7 past history, we know the names of all the staff people who are 

8 working on any kind of policy legislation. We can have a good 

9 interchange. 

10 The value for us of knowing who those technical 

11 people are is that, in the process of evaluating conflicting 

12 views as to what is necessary or not, you get a sense of their 

13 expertise. 

14 I think those two things, if they could be done 

15 in writing to the Committee, would be very helpful to us. 

16 CHAIRMAN LOCKYER: Can you respond on those 

17 matters? One is whether 60 days is acceptable. 

18 MR. MALLORY: I'm reluctant to do that. I don't 

19 even have a legal opinion in terms of the comment period, and I 

20 would be hesitant to give you a specific number of days without 

21 referring to statute or precedence. 

22 I feel I want to address Mr. Carter on the issue 

23 of who. I don't think we know yet. It depends as you go 

24 through the material, you ascertain who it is that has the 

25 knowledge that you need, and you contact those people based on a 
2 6 need and based on their expertise. 

27 We have not identified yet who it is that we are 

28 going to utilize for various specific components. 


The CEQA process, and the Committee may not know, 
the CEQA process is a self-correcting process. In other words, 
if there are gaps that we do not address, Mr. Carter gets two 
opportunities to point those out: number one, at the draft 
comment stage; and number two, after the completion of the final 

If he's still dissatisfied, I know he's well 
aware he could take the matter to court and point out our 
deficiencies in court, and we're bound to do that. 

CHAIRMAN LOCKYER: They did that once. 

MR. MALLORY: Yes, but I'm sure he's not going to 
have that problem, number one. And number two, we don't know 
what the recommendation is besides. And number three, it's a 
self-correcting process. It's like turning in your homework. 
If you've done a poor job, the teacher knows when you hand it 

The CEQA document requires that all the 
participants in the completion of the process be named when the 
final document is created. But the law does not specify, and I 
don't even think there's any precedent, for releasing names of 
people working on it as they're working on it. 

We're certainly open to any submissions he wants 
to make because that's what the process is for. If they have an 
expert they'd like us to meet with, or like us to take data 
from, we would love to have it. 

CHAIRMAN LOCKYER: Are there other questions from 

I'd suggest we put it over for two weeks. Put 


1 the confirmation vote over for two weeks. We will be -• 

2 MR. MALLORY: That would be beyond -- 

3 MS. MICHEL: We could come back in on the 26th. 

4 We have until the 3rd. 

5 CHAIRMAN LOCKYER: So, we'll talk then some more 

6 about legal counsel and what you've heard from them, okay. 

7 Thank you, sir. 

8 [Thereupon. This portion of the 

9 Senate Rules Committee hearing was 

10 terminated at approximately 3:55 P.M.] 

11 — ooOoo — 



I, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California, do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Coininittee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 



day of 

, 1998 


Additional copies of this publication may be purchased for $3.50 per copy 
(includes shipping and handling) plus current California sales tax. 

Senate Publications 
1 020 N Street, Room B-53 
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Please include Stock Number 340-R when ordering. 







2:28 P.M. 

por^l^flP^iTS DEPT. 

MAR 1 7 1998 






ROOM 113 


2:28 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 





Fish and Game Commission 

JIM EDMONDSON, Executive Director 
CAL Trout 

BILL GAINES, Director of Government Affairs 
California Waterfowl Association 

CHARLES BOCARIA, Conservation Vice President 
Northern California Council 
Federation of Fly Fishers 



Proceedings 1 

Governor's Appointees: 


Fish and Game Commission 1 

Introduction and Support by 


Background and Experience 3 

Witnesses in Support: 

JIM EDMONDSON, Executive Director 

California Trout 6 

BILL GAINES, Director of Government Affairs 

California Waterfowl Association 8 

CHARLES BUCARIA, Conservation Vice President 

Federation of Fly Fishers 

Northern California Council 10 

Statements by CHAIRMAN LOCKYER re: 

Request by Member to Delay 

Vote on Confirmation 11 

Questions by CHAIRMAN LOCKYER re: 

Concerns regarding Animal Protection 12 

Conclusion of Strategic Planning 

Process 12 

List of Principle Problems or 

Challenges for Commission 14 

Termination of Proceedings 15 

Certificate of Reporter 16 

— OOOOO — 

CHAIRMAN LOCKYER: Mr. Chrisman and Senator. 

SENATOR COSTA: Thank you very much, Mr. Chairman 
and Members of the Senate Rules Committee. 

Actually, although it's not this item on the 
agenda, let me make note, there was request from Senator Ayala 
that an appropriate oversight committee be provided as our 
efforts to try to address many of the various governance issues 
affecting to some of the water agencies in Southern California. 

The request has been made for such an appropriate 
oversight committee, and I have a letter submitted to Rules 
Committee concurring with Senator Ayala 's request. I think it's 
appropriate and look forward to working with Senator Ayala on 
that effort. I just wanted to make note of that. The Rules 
Committee has my letter, and I've also conferred with Senator 
Ayala on the matter. 

CHAIRMAN LOCKYER: It's Item Five. We'll get to 
it in a short time. 

SENATOR COSTA: I'm here this afternoon 
primarily, Mr. Chairman, Members of the Rules Committee, to 
present to the Rules Committee Mr. Phillip Michael Chrisman, 
although I must confess, I have always known Mr. Chrisman as 
Michael Chrisman over the years, some 25 years now that we have 
known each other and worked together on a host of issues, from 
those involving the resources of the Central Valley, and 
agriculture, to dealing with public policy, both on the state 
level as well as interacting with the federal government as 

well . 

In the various capacities in which Michael 
Chrisman and I have participated in over the years, I have found 
him to be extremely competent, very capable, very sensitive to 
addressing issues of concerns by numerous parties. He has been 
an individual that is very adept to listening to all sides on a 
given issue. And he has conducted himself in that capacity over 
the years as he and myself and others have attempted to find 
solutions to problems that have presented themselves on 
primarily resources issues, although we have delved together in 
other issues as well. 

Let me just finally say that the State Fish and 
Game Commission is historically an interesting commission in 
California's history. It is one of the few commissions that is 
actually written into the State Constitution. It goes back to 
the 1920s when there was really a separation in terms of how the 
department was governed and how oversight was provided. 

Now, obviously, that has changed over the decades 
since the 1920s to present, and the role of Commission has 
reflected the appointment and the membership through various 
governors. But I think that for all of us who are concerned 
about protecting, maintaining, and mitigating resources in 
California, especially when we look historically back where 
damages have occurred to some of our valuable resources, it is 
important that we have people who not only understand the 
history but have the talent to bring consensus. I believe the 
gentleman next to me here has that ability to bring consensus. 

He has only been on the Commission since last 

year, but he has already attempted to try to request that they 
develop a strategic plan in evaluating and inventoring what the 
State of California's current resources are, and how we can, 
into the 21st Century, develop a plan that is suitable and that 
can be implemented to protect California's most valuable natural 
resources as we look at a state in the year 2025, with 50 
million people in it. And there are conflicts with the 
population growth of 17 million more people in 25 years when we 
talk about balancing the needs of our natural resources. 

I think people like Mr. Michael Chrisman are 
certainly up to the job, and I would recommend him highly. 

CHAIRMAN LOCKYER: Good afternoon. 

MR. CHRISMAN: Good afternoon. Senator. 


MR. CHRISMAN: Thank you. 

CHAIRMAN LOCKYER: Deserved, I'm sure.. 

Thank you. Senator. 

Do you want to begin with any comment? 

MR. CHRISMAN: Yes, I would, if I might. 

I appreciate the opportunity, the courtesies 
afforded me, working with Nancy Michel and people on your 

I appreciate the opportunity to be here today and 
stand for confirmation. 

I come from the southern San Joaquin Valley. I'm 
a fourth generation resident of the Valley, and I've spent the 
better part of my life dealing with natural resource issues, 

both in the public and in the private sector. 

Because of this, I've developed a strong 
conservation ethic, I think, with a pretty good understanding of 
natural resources, in particular fish and wildlife issues. I 
had the high privilege of serving for a number of years in the 
Resources Agency here, where I dealt with many of these similar 

I also had the opportunity to work at the 
Department of Food and Agriculture, and now I have the privilege 
of working back home in Visalia with Southern California Edison 

When I first came to the Commission, I asked to 
take a look at the strategic plans, the long-term plans that the 
Commission had developed, if they had developed them, to kind of 
give me a sense of what some of the priorities were, some of the 
issue priorities and others were. Turns out we had never done 

So, since I've been on the Commission, under my 
leadership, we have instituted this process. 

Why are we doing this? Well, as Senator Costa 
indicated, this Commission is an old commission. It's gone 
through a series of iterations over the years. It's in the 
Constitution. And this has all been happening at a time when 
the State of California has enjoyed a phenomenal population 
growth: 32 million people now, 42 million by the year 2015. 
And all of this, of course, has brought about an intense 
pressure on our natural resource base, the land, water, and the 
air, and of course, the fish and wildlife, increasing 

responsibilities that have been given to us by the Legislature 
and the people of the State of California. All of this has 
joined -- has caused us to join and come together with a 
strategic plan. 

We have started this effort. We are reaching out 
to other states. We've asked information from other states on 
their — on how they've operated their commissions, experiences 
they've gained. We've asked for help from the U.S. Fish and 
Wildlife Service as they work with other states. 

We also have taken a look at what the plan might 
be. Of course, any plan like this will have a mission and 
vision statement. We will identify certain priorities and 
programs, various action items and time lines. 

One of the things we intend to do as this 
Commission as we get an initial document put together is to 
undertake some focus groups around the state. We will identify 
a number of areas where we'll go visit with a variety the 
stakeholder groups and ask for some more input. 

We have had a couple of public hearings where we 
have gotten just tremendous input and tremendous commitment to 
help us try to redefine what this Commission is about. 

In addition to the — before the two public 
hearings, we identified a number of priorities. Priorities 
that, as a Commission, we needed to take a look at. One of the 
priorities, of course, was in the marine resources area, a high 
priority that the current director and her leadership team has 
indicated as a priority, and we're going to be indicating as 

The State Endangered Species Act continues to 
always be a high priority. Communication roles and 
responsibilities — Commission roles and responsibilities, I 
should say. Commission budgets, and of course the operation of 
the Commission itself. 

What would I like to see out of the strategic 
plan? I would like to see a strong mission statement that 
articulates our trustee and stewardship responsibilities for 
fish and wildlife and plant species consistent with a continued 
fishing and hunting opportunities in this state. 

I'd also like to see a clear vision that says 
we'll be anticipatory and pro-active in oue decision making 

I'd also like a clear statement and commitment to 
stakeholder interaction as an ongoing basis of our programs. 

These are extremely challenging times in the fish 
and wildlife area here in California, and I'm certainly 
privileged to be on the Commission, and look forward to working 
with Members of this Legislature as we move forward to solve 
many of these problems. 

Thank you for opportunity. 


Maybe I could ask if there's anyone who wishes to 
comment either for or oppose the nomination, please. 

MR. EDMONDSON: Good afternoon, Mr. Chairman. I'm 
Jim Edmondson, Executive Director for California Trout, a 
statewide conservation group that's worked in California. 

I'm here today to support Mr. Chrisman. First on 

his deeds, and second on what I hope he achieves. 

I'm passing around photographs of what has been 
described as the most beautiful fish that swims. That happens 
to be our state fish, the golden trout. 

When Mr. Chrisman first came on to the 
Commission, and with his background in Food and Ag., he saw that 
protecting the habitat and beginning to improve management in 
the upper south fork of the Kern River was critical to prevent 
our state fish from being listed as an endangered species. And 
that's exactly what the U.S. Fish and Wildlife Service was 
speaking about. 

Because of his leadership early in his tour of 
duty on the Commission, he joined and convinced his other 
Commissioners to designate the headwaters of our state fish 
under a special policy built upon legislative mandate, the Wild 
Trout Program, considered the most successful fishery program in 
this state over the past 25 years. 

The catchword here is that there is a Memorandum 
of Understanding between the land administrator, the Forest 
Service, and the California Department of Fish and Game that 
places higher restrictions on protecting the habitat so we can 
avoid a dwindling or a disappearance of our state fish. 

The photograph is of the fish. I'm happy to 
report in that photograph you can see already the changes that 
are going on with the habitat itself, made voluntarily and 
cooperatively by the Forest Service. Mr. Chrisman 's 
responsible for that in his leadership. 

But I don't think that's the reason why I should 


be here today because that's a special interest. 

I believe that Mr. Chrisman has the qualities 
that the Commission and the Legislature desperately need at this 

In 1990, "the executive branch and the Legislature 
was handed a copy of the Little Hoover Commission's diagnosis of 
what ailed Fish and Game. With all due respect, we've seen no 
action on any of the eight recommendations. One of those eight 
recommendations was to do exactly as Mike Chrisman has just 
shared with you. 

He has a legislative background. He has an 
administrative background. He has demonstrated a real interest 
to reach out to stakeholders. 

On that basis, if we are going to repair — in my 
view and Cal Trout's view — Fish and Game, it's got to start 
with governance, and we have to have a house cleaning at the 
Commission, and their authority and skills to oversee the 
Department of Fish and Game. 

Thank you very much. 

CHAIRMAN LOCKYER: Is there anyone else that 
would wish to comment? 

MR. GAINES: Mr. Chairman, Members of the 
Committee, my name is Bill Gaines. I'm the Director of 
Government Affairs for the California Waterfowl Association. 

T^d the California Waterfowl Association would 
also like to urge the Senate Rules Committee prompt confirmation 
of Michael Chrisman. 

Over the course of the last several years, as you 


heard Mr. Chrisman state earlier today, he has served in several 
high level capacities/ each of which provide him with a solid 
background to help him do an outstanding job as a member of the 
Fish and Game Commission. Those include being a staffer to a 
Member of the State Legislature, a position with the California 
Department of Food and Agriculture, as well as a position with 
the California Resources Agency. 

Those three types of experiences, combined with 
the fact that he's a fourth level -- or fourth generation family 
farmer in San Joaquin Valley, we believe, provide him with the 
unique qualities that are necessary for a member of the 
California State Fish and Game Commission to provide the deep 
insight necessary to make positive and appropriate decisions on 
many of the tough issues that the Commission faces on an annual 

During the course of the last several months 
during his tenure on the Fish and Game Commission, we have found 
him to be very accessible. We have found him to go out of his 
way to reach out to stakeholders, as the previous gentleman just 
stated, not only stakeholders that are on the environmental 
side, but also on the agriculture, urban, and every side 
necessary to provide the information necessary to make 
intelligent decisions. 

Most recently, as you heard Mr. Chrisman state, 
he has taken the lead in helping the Commission to find a 
strategic planning effort to lead them into the 21st Century, 
something which we agree the Commission could very much use, and 
something which we are proud to see the Commission willing to 


take on because it won't be an easy effort. Mr. Chrisman, as I 
stated, has taken a lead in doing that, and we believe he should 
be applauded for doing so. 

We would like to offer him our strong support in 
today's confirmation. 

Thank you very much. 

CHAIRMAN LOCKYER: Anyone further? 

MR. BUCARIA: Senator Lockyer and Members of the 
Committee, my name is Charles Bucaria. I'm Conservation Vice 
President for the Federation of Fly Fishers in Northern 

It's my pleasure on the behalf of our 
organization to support Mr. Chrisman's confirmation proposal and 
to urge that you take rapid action in that regard. 

We are one of those special interests. We are 
your fishermen. There are 30 clubs in Northern California that 
contain some 7,000 members. 

And we're very concerned about the Fish and Game 
Commission at this time, particularly the inability of the 
Commission to provide the type of policy direction, the 
effective policy direction that is needed by the Department in a 
manner that will render our resources, our wildlife and fish 
resources, in better condition than they are right now. 

Shortly, we expect to hear steelhead in the 
Central Valley streams are designated by National Marine Fishery 
Service as endangered. We're not sure what's going to be 
happening on the north coast end of it, but we see the lack of 
coordination between federal and state governments, the lack of 


coordination between the various groups within the Resources 
Agency focused toward fishery and wildlife enhancement, not 
merely preservation, but enhancement because of their diminished 
conditions. We see those as evidences of the failure of our 
present system to work. 

We think that Mr. Chrisman is eminently suited to 
provide the type of leadership that the Department and the 
Commission need. We think that this strategic planning effort 
that he has implemented has some very logical results which we 
feel that he's uniquely suited to see happen. 

This is a window of opportunity for us, and my 
view is, he is the right guy to do the job. 

For those reasons, we ask that you take action 
today to move his continuation on the Commission forward. 

Thank you. 

CHAIRMAN LOCKYER: I should probably indicate, I 
don't think we will take action today because we have an 
informal rule which is, if Members request a delay, we do that 
as a courtesy. I don't think it's going to be lengthy delay, 
but we've had colleagues who have asked for time to think about 
it a little bit more. But we have to do it within the next 
month because that's when the clock stops. 

Questions from Members, Senators. 

As I understand, looking through the letters of 
not opposition, because I don't think there are any that I 
recall as formally opposed, but the concerned file, I guess is 
the label it gets, there seems to be -- excuse me, there were 
letters of opposition from the Council for Planning and 


Conservation/ Humane Education Network, and then a concerned one 
from Funds for Animals. 

They seem to principally, mostly all of these, to 
have some anxieties about your perspectives with respect to 
animal protection, livestock, maybe things of that sort. 

Do you want to just tell us what debates you've 
been associated with in this domain, and what we could expect? 

MR. CHRISMAN: I ' d be happy to. Senator. 

The way I read the letters, essentially, is 
because of my background in agriculture, that somehow I would 
not be sensitive to the needs of animals, the safety of animals, 
and the welfare of animals. 

That's just not the case. Again, I've spent my 
life working with animals, and sensitive to animals and their 
needs and their very welfare. That, of course, transcends into 
the fish and wildlife arena as with all animals. 

So, I don't differentiate in terms of my care and 
concern for them. 

CHAIRMAN LOCKYER: The planning process 
concludes when? 

MR. CHRISMAN: We've got — we've instituted it. 
We've held a couple of public hearings. Actually, one workshop 
and one hearing here in Sacramento a couple of weeks ago. We 
are in the process now of putting the information together 
into — what we heard that day on both the workshop in Long 
Beach and on the 16th here in Sacramento, the information that 
we got. 

Then what we're going to be doing is, we're going 


to be identifying probably about -- I'm not quite sure yet — 
six or seven areas around the state where we're going in. We're 
going to invite some focus groups in, stakeholder groups, 
probably no more than probably 15 people in each one of these 
focus groups. And what we would do is, out of the two previous 
public hearings that we've held, we'll ask a number of questions 
from an operational standpoint. Commission operations, roles and 
responsibilities, marine resources, those areas. We'll start to 
begin to focus on how we really get about fixing some of these 
problems . 

Then we will put together out of that a draft 
strategic plan that then, of course, will go out for comment, 
public comment. And then we will hold, of course, hold a number 
of public dialogues about that. And hopefully, by the end of 
the summer, late summer or early fall, we'll have a completed 
document that will have action items. We'll have specific areas 
of measurable areas, so then as a Commission, we can revisit 
this on either a semi-annual or annual basis, depending on what 
we decide along the way, so we can measure on how we're doing in 
terms of our agreed upon goals and objectives. 

We, quite frankly, think that this is the best 
way, one of the best ways to help us better manage this valuable 
fish and wildlife resource, and at the same time, get the kind 
of stakeholder input and public input so necessary in so many 

CHAIRM/VN LOCKYER: If you had to kind of quickly 
state what the problems are, we've always found it's a lot 
easier to state the problem rather than the solution, but what 


would be your list of the three or four principle challenges or 

MR. CHRISMAN: Well, with respect to the 
strategic plan, clearly we do not have a clearly defined mission 
statement. We need to get about doing that. I mean, a mission 
statement talks about what the Commission, what our mission 
really should be in a sense. And we need to spend some time 
with that because all of what we do after that will kind of 
center around that. 

We need to spend some time thinking about a 
vision for the Commission. What is it that we want this 
Commission to be? How do we want to be viewed in the public 
arena? Together with our stakeholders, what fish and wildlife 
resources that we're called upon to manage? How do we want to 
set the priorities in managing those resources? 

The other thing I think is really important is a 
clearly defined group of roles and responsibilities for 
Commissioners so we have a clear sense of what we're called upon 
to do. . 

One of the things that we did as we started this 
strategic planning effort is to try to get our arms around the 
statutes, try to get a sense of what our responsibilities really 
are, going back and have done a review of all of the statutes 
that relate to the responsibilities that this Legislature has 
given us over the years. Quite frankly, it's very, very 

It's going to cause us, we think, to probably do 
some prioritization. Not that one is more important than the 


other, but clearly, if we're going to get about fixing some of 
these very difficult problems, we're going to need a lot of 
help. A lot of help from the Department, a lot of help from the 
Legislature, a lot of help from our stakeholder groups and the 
people of California. 

So, those are the areas, quite frankly, in a 
short, round about way, that I think that we're going to 
hopefully get our arms around here in the next few months. 

CHAIRMAN LOCKYER: Other questions? 

I have a feeling we're ready to go, ready to 
vote, but out of courtesy to colleagues that have asked, you'll 
probably be back on the calendar next week. Maybe it needs two, 
but I don't know that you need to appear again. We will let you 
know whether that's necessary. 

Thank you, sir. 

MR. CHRISMAN: Thank you. Senator. 

[Thereupon. This portion of the 

Senate Rules Committee hearing was 

terminated at approximately 2:56 P.M.] 
— ooOoo-- 





I, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California, do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 
>^ day of ^^JzA^A^^^^A^^ , 1998. 

Shorthand Report'^ 


Additional copies of this publication may be purchased for $3.00 per copy 
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Please include Stock Number 343-R when ordering. 





ROOM 113 


1:37 P.M. 

pO^"^'"^NTS DEPT. 

ft^A^ 1 7 1998 






ROOM 113 


1:37 P.M. 

Reported by 

Evelyn J. Mizak 
Shorthand Reporter 










GREG SCHMIDT, Executive Officer 

PAT WEBB, Committee Secretary 

NANCY MICHEL, Consultant on Governor's Appointments 





Board of Prison Terms 

California Department of Corrections 


FRANK R. SEARCY, President 

Chicano Correctional Workers Association 

ROY MABRY, State President 

California Association of Black Correctional Workers 

City of Taft 

LANCE CORCORAN, Vice President 

California Correctional Peace Officers Association 

RICO BARNES, Correctional Lieutenant 
California Department of Corrections 

SHELLEY BRYANT, Correctional Lieutenant 
California Department of Corrections 


Youthful Offender Parole Board 

MARIO OBLEDO, President 

3 California Coalition of Hispanic Organizations 

4 DOUG WILHOIT, Vice Chairman 
Youthful Offender Parole Board 





Proceedings 1 

Governor's Appointees; 


Board of Prison Terms 1 

Background and Experience 1 

Questions by SENATOR HUGHES re: 

Overcrowding in Prisons 3 

Alternative Treatment Programs for 

Parole Violators 4 

Variations in Parole Revocation Rates 5 

Community Correctional Centers and 

Work Furlough Programs 6 

Questions by SENATOR LEWIS re: 

High Recidivism Rate 7 

Questions by SENATOR AYALA re: 

Process Used by Board for 

Determining Parole 9 

Contact with Supervising Parole 

Agents in Field 10 

Use of Electronic Monitoring Devices 11 

Questions by CHAIRMAN BURTON re: 

Types of Parole Violations 12 

Battered Woman Syndrome 14 

Number of Violent Sexual Predators 

Referred to Civil Commitment Process 18 

Treatment Options for Violent Sexual 

Predators 18 

Motion to Confirm 19 

Committee Action 20 


California Department of Corrections 20 

Introduction and Support by 


4 Background and Experience 21 

5 Questions by SENATOR HUGHES re: 


Situation at Pelican Bay and 

Position on Double Celling Prisoners 29 

Trial Period for Inmates Who Are 

8 Double Celled 31 

9 Current Status of Lawsuit on Violations 

of ADA 32 


Department's Pursuit of Changes in 
1 1 Federal ADA Statute 33 

Identification of ADA Inmates 33 

13 Questions by CHAIRMAN BURTON re: 

14 Reasons for Inmates Masking Their 

Developmental Disability 35 


Conclusions Reached in Report, 

20 "Conditions of Confinement of Juveniles" 37 

21 How to Improve High Parole Revocation 

Rates in California 38 


Questions by SENATOR HUGHES re: 

Grooming Standards 35 

Removal of Weight Equipment 36 

Questions by SENATOR AYALA re: 

Use of Electronic Monitoring Devices 41 

Proposal for Budget Augmentation to 
24 Investigate Criminal Activities Engaged 

in by Departmental Employees 42 

Statute of Limitations for Such Cases 44 


Questions by CHAIRMAN BURTON re: 

Need for Statistics Showing Original 

Offense and Type of Parole Violation 45 

Literacy Programs Available in Prisons 45 

Cost of Programs 47 

What was Problem with Polanco Bill which 

Would Have Mandated Double Celling 48 

Status of Lawsuits between CDC and Cities 49 

Policy on Dental Care for Inmates 50 

Taking Away Law Libraries 51 

Questions by SENATOR HUGHES re: 

Frequency of Dental Exams for Prisoners 52 

Questions by CHAIRMAN BURTON re: 

Grooming Standards 53 

Prisoner Packages 56 

Implementation of Recommendations from 

Governor ' s Blue Ribbon Commission 57 

Questions by SENATOR AYALA re: 

Need for Correctional Officer Safety 59 

Large Number of Parolees at Large 60 

Request by CHAIRMAN BURTON for Information on 

Type of Parolees at Large 60 

Witnesses in Support: 

FRANK R. SEARCY, President 

Chicano Correctional Workers Association 61 

ROY MABRY, State President 

Association of Black Correctional Workers 63 


City of Taft 64 


witness with Concerns; 


California Peace Officers Association 65 

Witnesses in Opposition: 

Example of Frivolous Appeals 72 

RICO BARNES, Correctional Lieutenant 

5 California Department of Corrections 67 

6 Questions by CHAIRMAN BURTON re: 

7 Request for Specific Instances 

of Managerial Misconduct 70 



SHELLEY BRYANT, Correctional Lieutenant 
10 California Department of Corrections 73 

n Questions by SENATOR LEWIS re: 

12 Nature of Managerial Misconduct 75 

13 Questions by SENATOR BRULTE re: 

14 Nature of Personnel File Violation 75 

15 Reason for No Future Promotions 76 

16 Questions of Both Witnesses by 



Problems Occurred Prior to Director 

18 TERHUNE ' s Appointment 77 

19 Settlement in BARNES • Case 78 

20 Questions of Both Witnesses by 



Nature of Complaint against TERHUNE 

22 Is Lack of Response 79 

23 Request by SENATOR LEWIS to Put Vote on 
Confirmation over for One Week 80 


Response by MR. TERHUNE to Issues Raised in 

25 Opposition 81 

26 Committee Discussion on Putting Vote Over 83 




Youthful Offender Parole Board 86 

Background and Experience 86 

Questions by CHAIRMAN BURTON re: 

Impact of Statements by Victims or 

Families of Victims in Decisions 88 

Ability of Counties to Decide Length 

of Stay of Wards 90 

Questions by SENATOR HUGHES re: 

Efficacy of New Experimental Programs 91 

Board's Assessment of Whether Wards Have 
Rehabilitated 92 

Questions by SENATOR AYALA re: 

Age of Older Wards 93 

Possibility of Lowering Age Limit for 

Youth Authority Incarceration 94 

Motion to Confirm ;..... 95 

Committee Action 95 

Witnesses in Support: 

MARIO OBLEDO, President 

California Coalition of Hispanic Organizations 96 

DOUG WILHOIT, Vice Chairman 

Youthful Offender Parole Board 97 

Termination of Proceedings 98 

Certificate of Reporter 99 

— ooOoo — 

CHAIRMAN BURTON: Item Three, Governor's 
appointees appearing today, Thomas J. Giaquinto, member of the 
Board of Prison Terms. 

MR. GIAQUINTO: Good afternoon. 

CHAIRMAN BURTON: Good afternoon. 

MR. GIAQUINTO: My name is Tom Giaquinto, 
Commissioner with the Board of Prison Terms. That's it, sir. 

CHAIRMAN BURTON: That's your name? 

MR. GIAQUINTO: Yes, sir. 

CHAIRM7\N BURTON: That's good enough reason to 
confirm you? 

MR. GIAQUINTO: Not yet. 

CHAIRMAN BURTON: I'm new to this. Say 
something. Give me a chance to catch up. 


MR. GIAQUINTO: Well, what I'd like to say is, 
I've been a Commissioner for approximately four years. 
Actually, 1993 is when I came on the Board. So, I'm into my 
fifth year on the Board of Prison Terms. 

My responsibilities, of course, are conducting 
the lifer hearings and occasional rescission hearings. 

And I really feel very strongly about the work 
that I do. Previously, I was a police officer with the City of 
San Diego for approximately 25 years. 

I never really understood what happened on the 
other end of the spectrum, because I'd spent a lot of time 

1 trying to catch them and put them in, and they were getting out. 

2 And I never understood that and said, what's wrong with those 

3 people up there? How come every time I take a lot of time to 
A put them in prison, now they're getting out of prison? 

5 Now I understand. I have another perspective on 

6 why people need to be let out of prison, why people need to be 

7 kept in prison, and who needs to be kept there. 

8 Dealing primarily with the lifers, of course, 

9 it's not as complex as it might be if I were dealing in other 

10 areas, say, with determinate prisoners. But dealing with the 

11 indeterminate prisoners and the mandatory sentencing on second 

12 or first degree murderers, and attempt murderers, and train 

13 wreckers and such, you know, it's been a real learning 

14 experience for me. 

15 Really, I came in this, I never heard of Title 

16 Fifteen as a police officer, never. I didn't know what Title 

17 Fifteen was, but I learned in a hurry. 

18 So, I'm back here today, and I'm hoping that 

19 you'll look upon me favorably and keep me here for another three 

20 years, I guess it would be, for the completion of a four-year 

21 term. 

22 I welcome any questions by the Senators, and 

23 hopefully I'll be able to answer them to your satisfaction. 

24 SENATOR HUGHES: Mr. President, may I? 

25 CHAIRMAN BURTON: Yes, Senator Hughes. 

26 SENATOR HUGHES: Given the problem of severe 

27 overcrowding occurring in the prison system, what do you think 

28 BPT should do to alleviate this shortage of the bed space? That 

really concerns me, as I'm sure it concerns you. 

What ideas do you have? 

MR. GIAQUINTO: Well, as I said. Senator, and 
thank you for asking that question, as I said, I deal primarily 
almost a hundred percent in the area of lifer hearings. And 
those are indeterminate prisoners, and not many of them are 
granted suitability. 

Of course, the Board of Prison Terms, which comes 
under the day-to-day administration of our Chairman, is also 
responsible for the area of revoking paroles where we have 
violators, and things like that. 

There's probably some things that we can do. I 
know we're looking into many different areas right now. Some of 
those things that we're presently considering are such things as 
electronic monitoring, which may assist us in not putting so 
many people back in prison when they've violated their 
conditions of parole. 

The premiere or primary consideration, of course, 
in each step is the safety of our citizens, and to weigh that 
against the jail overcrowding, sometimes, is an extremely 
difficult task, as I'm sure you're well aware. 

We have, in implementing our system of justice, 
many different aspects that, in effect, reduce the prison 
population. It starts off when the prosecutor has an 
opportunity to reduce an offense to a lessor offense. And then 
it goes to the court, and the court can reduce the length of 

And then, in our legislation, we have such things 

as good time credit, so we've also implemented that, saying, 
well/ yes, this is a three-year sentence, but we're going to let 
you get out in 18 months if you're a good person in prison. 

We've got all these things that happen. Now, we 
put them in prison, we let them out, and what happens? They go 
out, and they do the same thing. And we have to look at what 
the crime was that they committed when they violated parole. 

SENATOR HUGHES: Talking about that, could or 
should BPT direct additional numbers of parole violators to drug 
treatment or alternative punishment programs instead of 
returning them to prison? 

MR. GIAQUINTO: I believe that we surely have to 
consider that as an alternative, because we know that in many 
cases, that is the answer for some violators, and that is 

We have to be extremely cautious when we talk 
about returning — not returning someone who is a drug abuser,' 
because we find that in such a large percentage of the crimes 
that have occurred, substance abuse was at the root cause of the 

So, we've put them in prison for an assault, 
let's say, with a deadly weapon. And they were drunk. They 
were in a bar fight, and they hit somebody with a pool cue. So 
now we kick them out on parole and what happens? They're picked 
up by the police for drunkenness. Now, that seems kind of like 
a minor offense. It's probably at the lowest end of the 
misdemeanor offenses, but we have to consider that individual's 
history of chronic alcohol abuse and where it led him in the 


Surely, we cannot ignore the fact that this 
individual needs treatment and should be directed towards a 
substance abuse program of some type. 

In the case of a drug dealer, I don't know if 
we'd want to put him — if he was only caught with a small 
amount of marijuana on electronic monitoring, because we find 
that the most common environment for drug dealers are homes. 
So, if you put them on electronic monitoring, there's a good 
chance he's going to be dealing out of the back window of his 
house, so we might not want to do that, 


MR. GIAQUINTO: Or not, but we surely want to 
consider that that's a possibility in that person's case. 

But if historically they've only had one prior 
violation, we may want to consider treatment and electronic 
monitoring, and increased parole awareness by the agent that is 
responsible for that individual. 

SENATOR HUGHES: CDC data indicates that parole 
agents in some regions of our state have a greater propensity to 
return violators to prison than agents in other parole regions. 

What factors do you believe account for these 
variations in revocation rates, and what should we or should we 
not be doing about that? 

MR. GIAQUINTO: You know. Senator, I don't know 
if I can really answer that to the degree that's going to 
satisfy anyone. And that's because, I'll tell you why. 

It's no different than saying, they're all 


different individuals, no different than the police officers we 
have on the street who may give one person a verbal warning for 
a citation, and another officer will write him a ticket every 
time they stop a car. 

And the same with the parole officers. We might 
find that as individuals, some will have a zero tolerance — 
they employ zero tolerance. The first time the parolee does not 
report to the office, they want to violate that parolee. Others 
won't do that. They will and they'll talk to them, and say, 
hey, you can't do this, this is your first offense or second 

I think it's incumbent upon us as the reviewers 
of these violations to assure that that is not the case, and to 
even interact with CDC and Parole to assure that we at least 
pursue trying to have some stability in terms of equal 
administration of how they're violating the parolees. 

SENATOR HUGHES: To what extent are community 
correctional centers and work furlough programs being utilized 
for parole violators, and should these programs be expanded, 
modified, or discontinued? 

MR. GIAQUINTO: I don't know the answer to the 
first part of your question. Senator, and I apologize, because I 
don't know to what degree. 

I know that in the revocation process, if we find 
that that person has been in that program has not been taking 
advantage of it, or that we should increase their awareness of 
programs, we try to push them in that direction. 

In terms of what we should do in terms of 

encouraging the expansion of those programs, absolutely, because 
as I said, not only the drugs, but how about the dysfunctional 
family issues that we find are so common amongst the vast 
majority of our violators? Why not put them or at least try to 
encourage them in the direction of some program that will assist 
them in maybe reunifying the family setting that they're in? 

Approximately 70 to 80 percent of all of the 
lifers that we see coming into prison have one common basis, one 
common occurrence that occurred well before the drug use and the 
gang use and all. They came from families where one or both 
parents was missing before the age of five. That's the single 
most common thing we see with these prisoners. 

And then they go into the juvenile delinquency, 
and the drug use, or the gangs because they find people on the 
street that then become their families. 

So, when we are talking about things that you 
asked about. Senator Hughes, we need to push them in all of 
those directions. Anything that will help them to reestablish 
who they are, build their self-esteem, teach them about family 
values, drug abuse, all of those things, and we should take an 
active role in that at all times. 


CHAIRMAN BURTON: Senator Lewis. 

SENATOR LEWIS: According to our statistics, 
about 75 percent of those on parole actually fail. I want to 
ask you, what in your estimation are the couple of things could 
or should be done to make that a more respectable number? 

MR. GIAQUINTO: Again, I guess. Senator, it's 


probably, you know, we don't know why so many criminals fail 
parole. They tend to go back and repeat the same types of 

And I really feel, after having reviewed so many 
-- and again, I'm talking about lifers now because that's my 
area of expertise, the indeterminate prisoners — so many come 
to prison with IQs under 100, probably in the 60 to 90 range. 

I think that education in prison is imperative. 
When they first get there, let's get them into the GED programs, 
educate them. We find that over the period of time, the more 
educated they are, the less likely they are to re-offend. 
Encourage them to get into the programs that are available in 
the prison that are cost effective for us. GED programs seem to 
work very well. 

We have cut a lot of educational programs out 
because of the fact that they were not cost effective. 

But I understand over at San Quentin, we have a 
lot of professors that are volunteering their time to teach 
college courses. If we can implement or encourage that kind of 
participation by our citizens in other areas of the state, in 
other institutions, and we can increase the educational level of 
a lot of the prisoners that we see, I think it may, in fact, 
impact the recidivism rate, in addition to other programs, such 
as drug abuse, and anything else and we can get them involved 

CHAIRMAN BURTON: Senator Ayala. 

SENATOR AYALA: Mr. Giaquinto, you're a member of 
Board of Prison Terms. You are responsible for setting the 


conditions and length of parole for lifers. I guess that's who 
you deal with. 

Can you give us a brief idea how you come to that 
conclusion, how long will they serve, and the conditions set 
before them? What do you look for in these inmates that are 
ready to be released? 

MR. GIAQUINTO: In the indeterminate prisoners 
that we see, of course, you know, these are lifers. And there's 
not that many crimes, if you weigh that against the Penal Code, 
that a person gets sentenced to life for. We're talking 
primarily about murders, attempted murders, kidnappings, maybe 
train wrecking. 

First of all, you have to weigh the offense and 
the participation of the individual. That's what I look at 
first, the gravity of the offense. Yes, in fact, a person may 
have been killed. A person lost their life in the offense. But 
who do we have before us? I'll give you just an example. 

Let's say we have a young 16-year-old girl that 
falls in love with some 21-year-old guy who says, drive me over 
to the 7-11. I'm going to stick this place up. He goes inside 
and he kills the clerk. Now they both go to prison, because she 
was the driver of the getaway car, felony murder rule. 

So, she's been in prison eight or ten years. 
She's been a model prisoner. Do we really want to keep her in 
the rest of her life? I think not. Otherwise, the citizens and 
the Legislators of this state would not have provided for 

So, with everything being equal, we may want to 


look at letting her out. We'd look at her participation in the 
crime, the gravity of the offense, and how she's been 
programming in prison, and her prior history of criminality, if 
there was any. 

On the other hand, the shooter, we may want to 
keep him in a little longer because of the serious nature of the 
offense that the shooter committed. He killed another human 
being just because he went in to rob some place for five bucks. 

And if he's got a long prior record, and he 
hasn't been doing well in the prison, and he's spitting at 
officers because he doesn't want to come out of his cell, my 
vote is, keep him there a while longer because he's not 
following the rules inside the prison, he's not going to follow 
the rules outside of prison. And the serious nature of the 
offense, in and of itself, may justify a longer term of 

SENATOR AYALA: How close do you work with the 
supervising parole agents out in the field? 

MR. GIAQUINTO: I don't work closely with them 
myself. Senator, because of the nature of my job. I travel 44 
weeks of the year out of town. I'm in a hotel room, and then 
the other six or eight weeks, I happen to work in a prison 
that's near my home. So, I'm on the road most of the time doing 
the lifer hearings. 

SENATOR AYALA: You do not have contact with the 
supervising agents out in the field? 

MR. GIAQUINTO: No, I don't have any contact with 



MR. GIAQUINTO: Our Chairman does, and of course, 
our chief deputy commissioners, and the personnel that we have 
in Sacrcimento interact often with those organizations because, 
of course, we need to coordinate our efforts sometimes. They're 
doing that a lot right now with some of the other — 

SENATOR AYALA: Who determines whether an 
electronic monitoring device will be used on a parolee? 

MR. GIAQUINTO: That would be the Chairman via 
the chief deputy commissioner, and the deputy commissioners, and 
down that other side, because I'm still in the lifer side where 
I'm just doing the murderers. 

SENATOR AYALA: Do you have a lot of those people 
out in the field that have been paroled that are on these 
electronic devices for monitoring? Do you use that quite 

MR. GIAQUINTO: I don't know. Obviously, I don't 
know if we have a lot of them out there or not. 

SENATOR AYALA: Who would know? 

MR. GIAQUINTO: I think that our Chairman would 
know . 

SENATOR AYALA: We will get to him later then. 
He's sitting over there. 

MR. GIAQUINTO: Is that Mr. Terhune? He knows 

SENATOR AYALA: I just wondered, because I have a 
problem with the way — well, I'll save it for him. 

That's all I have, Mr. Chairman. 


1 CHAIRMAN BURTON: A 75 percent failure. What 

2 kind of failure? What do they do? They commit a crime, and 

3 they pee dirty in a bottle? What do they do? 

4 I'm sorry. Following up, I think when Senator 

5 Lewis said, how many violate, what percentage? You said, 

6 roughly 75. 

7 How many of them are, like, doing bad stuff and 

8 how many are doing stupid stuff? 

9 MR. GIAQUINTO: I don't know. I can't break that 

10 down for you because I don't know. 

11 CHAIRMT^ BURTON: Wouldn't that be important? 

12 That's important for us to know because we've got to come up 

13 with the money to pay for the prisons that these people are in. 

14 And, you know, you have somebody that does something bad, that's 

15 a crime in and of itself, I think that's one thing. 

16 You have somebody that misses an appointment with 

17 a parole officer, again for stupidity, maybe he pees dirty in a 

18 bottle, depending on what it is for, stupidity, I mean, it would 

19 seem to me that the taxpayers would be better served by doing 

20 something other than, you know, first shot out of the box, 

21 revoking him. Whether it's the one that failed the test, that 

22 you make sure that they're going to some 12-step programs, and 

23 monitoring that. If they missed a meeting with the parole 

24 officer, you kind of let them know that every dog gets a bite, 
2 5 but, you know, this can be a very serious thing. 

2 6 But information that I had when I chaired Public 

27 Safety that was really brought to me by Senator Lockyer, it 

2 8 seemed there were an awful lot of people going back to prison at 


a high cost that were not necessarily a threat to anybody, 
including themselves. I don't necessarily know it's a threat to 
society to blow an appointment somewhere. 

I would like if somebody could get us that 
information. I don't blame you for not having it, but I think 
it's important for us to know what are people going in for and 
what are they not. 

And then, I think you probably always can have 
uneven application of the law, you know, whether it's a traffic 
cop, the two-wheeler, may give people a pass if they're going 40 
in a 35, and somebody may give them a ticket if they're going 36 
in a 35. 

MR. GIAQUINTO: Well, you know what. Senator 
Burton? You're absolutely right. I agree with almost 
everything you said, and I kind of alluded to that with, I 
guess. Senator Hughes and Senator Lewis, when I was talking 
about the differences between the parole officers and all that. 

I do know that approximately, out of 150,000 
prisoners that we have in prison, about 57,000 of them are 
returnees on parole revocations. 

Now for which individual violations, I don't 
know. But I do know, as Senator Hughes said, and you are right, 
some of these we may want to take a look at again. 

CHAIRMAN BURTON: It's interesting, and I'd like 
to know which ones, like, committed crimes, and which ones did. 
Again, to me there's a difference between bad and stupid, and 
sometimes stupid can get into bad. I think that's something 
where we might have the information made available to us. 


A couple other comments, if somebody goes to 
prison with under a hundred IQ, I don't know how much a 
volunteer college professor is going to do for them. I mean, 
when you're under 100 IQ, you've got some learning disability 
problems . 

I think it's good that almost as much counseling 
and as much education as we can get, but we're not going to make 
college graduates necessarily out of the 100 IQ. 

Now, what is the situation, and then I've got 
just this one and then Senator Lewis, do you deal with the 
battered woman syndrome prisoners that are down there? There 
are several that are doing some time to life for having killed 
an abusive spouse. 

And I visited Frontera years ago, and there were 
like 13 women in there doing time to life. And only one of them 
had ever even had a beef before she got arrested, once drunk, 
once for possession of Marijuana. 

There was some old Italian woman that probably 
used to clean the rectory at her local parish, who, after her 
husband -- you know, I mean, classic thing. They're still in 

I mean, these people wouldn't be a threat, you 
know, to anybody in the world. And at what point, you know, 
we've tried to get the Governor, and he's pardoned, I think, 

At some point, we're going to take a look at 
these people and say they aren't a threat. I mean, again, 
they're not quite the 16-year-old with the boyfriend, but had 


they been arrested/ you know, five years ago instead of ten 
years ago, they would have had a defense that they probably 
either would have gotten a lesser penalty or maybe even skated. 

How are you dealing with these people? 

MR. GIAQUINTO: Well, first ~ 

CHAIRMAN BURTON: And you means all ya'll, not 
just ya'll. 

MR. GIAQUINTO: All ya'll. 

Well, you know, I'm going to try to speak for 
myself. I personally have granted parole to at least two bona 
fide battered women. 

And there are battered individuals that we see 
men, and women, primarily women. There are some men that we 
have that were battered not necessarily by their spouses, but 
they were in a similar Environment in a work place where they 
couldn't leave the job because was meant everything, and 
co-workers were doing things similar to what spouses do. 

First of all, we have to look at the incident 
itself. Well, first of all, we've got to determine if they're 
bona fide battered women. 

We have actually had women testify in our 
hearings saying, well, I wasn't really a battered woman, but I 
put my name on the list because they were sending — 

CHAIRMAN BURTON: We aren't talking about them. 

MR. GIAQUINTO: Right. So, we're talking about 
the bona fide battered women. 

This is something that you have to really be 
sensitive to, and be compassionate about, because they, in fact. 


were victims. 

But what is society really saying? Are we saying 
that, in fact, we are going to condone the murder or the taking 
of a human life -- 

CHAIRMAN BURTON: No, no, that's not my question. 

My question is, they're in jail. They're doing 
time. Some of them have done some fairly serious time. 

And should they be kept in at taxpayers' expense 
when they're absolutely of no danger to society? 

Some of them have been in there 10, 12, 13, 14, 
15 years. That's kind of serious time to me. 

And nobody's saying give them a pass, although 
some of them, if you can believe the stories, and let's assume 
we can believe half of them, they would have walked. They 
wouldn't even be in jail because battered women's syndrome was 
something that was not taken into consideration. 

So, I'm just saying, there are people there that 
we would all agree. Somebody said I just came in because I 
thought it's a good idea, that's not worth your time, my time, 
or the Committee's time. 

I'm talking about the women that are there that 
clearly, the history shows never in their life did they do 

This one woman that sticks in my mind, every time 
we went to talk to her priest, the priest said, pray for 
yourself and your husband. She'd say a few prayers, go home and 
get another whack, you know, and sometimes with a sledge hammer. 

This is what I'm talking about. I guess I'm 


hearing you say, not to the extent I'd like it, that, you know, 
you look at these things individually and treat it seriously. 

But to say that by letting somebody out who maybe 
was driven to this act after they did twelve years in prison is 
not saying, hell, that's all right, go kill somebody else. 

MR. GIAQUINTO: No, Senator, I think what I was 
doing was laying out for you my thought process in terms of how 
I make that decision. 

At the preliminary report of what I was saying is 
what I consider, the seriousness of the crime. And as you've 
said, we can't give them a pass because they've taken another 
human's life. 

CHAIRMAN BURTON: The seriousness of the crime, 
excuse me, I'm taking too much time. 

The seriousness of the crime is, they killed 
somebody. That's a given. 

MR. GIAQUINTO: But I'm trying to give you the 
thought process. I thought that's what you asked, how I make 
that decision. 

CHAIRMAN BURTON: I asked what you were doing, 
but that's okay. 

Senator Lewis, go ahead. I don't want to take up 
everybody's time. 

SENATOR LEWIS: I'll pass on my comment. 

CHAIRMAN BURTON: We can get into this later, 
maybe give this to the Budget Committee or Public Safety, but 
there's 74 percent revoked; 58 are technical violations. 

Could you tell us what a technical violation is? 


MR. GIAQUINTO: I have no idea. Senator. I don't 
do that. 

CHAIRMAN BURTON: That's fine; that's good. 

One other thing, on the sexual violent predator 
system, how many people do you know have been referred to that 
so-called civil commitment process? Do you have any idea? 

MR. GIAQUINTO: Somebody knows other than me. I 
know it's several hundred. 

CHAIRMAN BURTON: Seven hundred have been 

MR. GIAQUINTO: No ~ yeah, that's right. 
Approximately 700 have been referred. 

CHAIRMAN BURTON: Seven hundred whose time came 
to get out were then referred to the — 

MR. GIAQUINTO: That's correct. 

CHAIRMAN BURTON: When somebody comes in the 
prison that's a sexual predator, which is a term I'm not crazy 
about, or even I guess just convicted of a kind of bad sexual 
crime, is there treatment that's given to these people in the 
prison? Or do we just hope that they're in there, and somehow 
lightning will strike, and whatever drove them to do these kind 
of acts will stop them? 

Is this a fair question to ask you or ask the 
Department of Corrections? 

You get somebody who's got a record of being 
really bad. Do they try to like get to the bottom of it, or do 
they just figure, well, we'll be able to hold him another two 
years in civil commitment, so why bother? 


MR. GIAQUINTO: I can't really answer that to the 
degree that you'd want me to answer. I only have my own 
personal knowledge, and that is, we had a lot of programs that 
have now been cut back for budgetary purposes. 

And for the more violent ones, yes, there are 
still places, like Atascadero, or, you know, there are some 
treatment programs within the institutions. 

CHAIRMAN BURTON: That would be more of a 
question for them. I think that's it. 

Any other questions by other Members? 

Is there support? We have record of the people 
who are supporting you. It's very impressive, indeed. 

Any opposition? 

SENATOR LEWIS: Move confirmation. 

CHAIRMAN BURTON: Moved by Senator Lewis. Call 
the roll, please. 

SECRETARY WEBB: Senator Ayala. 

SENATOR AYALA: Can I ask a question? Are we 
going to hear from those that support the gentleman? 

CHAIRMAN BURTON: Sure. I asked for support. 
They're on record. 


SECRETARY WEBB: Ayala Aye. Senator Brulte. 


SECRETARY WEBB: Brulte Aye. Senator Hughes. 


SECRETARY WEBB: Hughes Aye. Senator Lewis. 



SECRETARY WEBB: Lewis Aye. Senator Burton. 


SECRETARY WEBB: Burton Aye. Five to zero. 

MR. GIAQUINTO: Thank you. 

CHAIRMAN BURTON: We'll chat again. 

Next would be Clarence Terhune. 

Related to Payson Terhune? 

MR. TERHUNE: He was my grandfather's cousin, 
Albert Payson. 

CHAIRMAN BURTON: Exactly. Anybody know who he 

MR. TERHUNE: Didn't read your dog stories, did 

CHAIRMAN BURTON: He wrote the Lassie books, and 
Buff, a Collie . 

SENATOR BRULTE: Then I move the nomination. 
[Laughter. ] 

CHAIRMAN BURTON: This is a dog, isn't it? 

Senator Polanco is here. 

SENATOR POLANCO: Yes, Mr. Chairman and Members, 
I'm here today to introduce to you a man who has served over 30 
years in this area of corrections, starting at Youth Authority 
and working his way up. 

As you know, Cal was brought out of retirement by 
the Governor to assume the position of Director of CDC. What 
has impressed me most, Members, you should know that from the 
time that he had taken on the role, he has visited 32 of the 
institutions within the state of California. I know that we 


brought another institution on line; 33 are on line total. I 
don't know, but it wouldn't surprise me if, in fact, Cal has 
made that visit. 

He is the type of individual whom I've had the 
opportunity to engage with. He recognizes, as we all recognize, 
that by the year 2000, we are going to run out of beds in our 
correctional institutions. 

He is an individual who today serves in the 
capacity. There are changes occurring. I'm here to ask that 
you confirm his nomination. He brings, I think, the type of 
stability, management style, but more importantly, I think the 
tenacity and the commitment to making some changes that improve 
a system that is very costly to the State of California, but 
more importantly, a system that will be fair in the 
implementation of corrections. 

I'd ask that you support him, and you'll hear 
from him. I'm sure you're going to ask him all the right 

Having said that, Mr. Chairman, I thank you for 
the opportunity to introduce him to you. 

CHAIRMAN BURTON: Thank you very much. Senator 


MR. TERHUNE: Thank you for having me here today, 
and congratulations. Senator Burton. 

CHAIRMAN BURTON: Thank you very much. 

MR. TERHUNE: Something was said about my having 
all the answers. I'm going to start out — I have a prepared 


statement — but I'm going to start out by stating the one thing 
that's made me pretty humble during last four-and-a-half months. 

The last time I was before this group, I had come 
up for confirmation to be Youth Authority Director, but I came 
into the job with about 33 years of experience. I knew 
everything about the Youth Authority. 

The thing that probably concerns me most is, 
after four-and-a-half months, I am appalled at how little I do 
know about the Department of Corrections. It's a big operation. 
I've worked hard, but it's a big operation. I wish personally 
my knowledge was at my satisfaction level. I don't have it. 
I'll try and answer all your questions as we get in it today. 

Thank you for the opportunity to come before you 
today. I've spent more than 35 years of my life working in some 
capacity within the criminal justice system. 

My educational background includes a Bachelor's 
Degree from California State University, San Jose; a Master's 
Degree in social work from the University of California, 

I started with the California Youth Authority in 
1956 as a parole agent. I spent the next 35 years promoting to 
various positions of greater and greater responsibility within 
the Youth Authority. These positions included Superintendent of 
four facilities. Deputy Director of Institutions Operation, 
Deputy Director of Parole Services. 

Finally, in 1987, I was appointed to the position 
of Director of the California Youth Authority. I served in that 
capacity until I retired from state service in 1991. 


While in retirement, I worked for several years 
as an institutional site inspector on the conditions of 
confinement in correctional facilities for a firm in Cambridge, 
Massachusetts . 

In 1996, I was elected, or selected, I guess, to 
be Mayor of a small town up in Amador County, the City of lone. 
I can tell you that after spending my career in criminal 
justice, being a local government official brings a whole new 
perspective to the concept of being a good neighbor with a state 
prison and a state youth correctional facility. It also brings 
to light what is meant when your constituents come in in an 
uproar about an escape, or you find yourself in conflict with 
the California Department of Corrections and embroiled in a 

Frankly, I have seen the other side of the 
correctional system. I've seen it from the receiving end. 

In August of 1997, I resigned from this position 
when Governor Wilson asked me to assume the duties of Director 
of the Department of Corrections. 

Once I became Director of the Department of 
Corrections, I felt that my first priority would be to go to the 
field and meet with staff and to do an initial assessment of all 
33 state prisons. I gave myself six to eight weeks to 
accomplish that task. I finished it in seven. 

Because we do have 33 prisons located throughout 
the state, and each prison has its own particular mission, it is 
impossible to provide an overall statement about them. 

What I can do is offer you a perspective of what 


I felt I needed to accomplish during my assessment, and any of 
the concerns that may have arisen as a result. 

I believe that the first place I needed to see 
was Pelican Bay State Prison. This is our maximum security 
facility. There were several past issues at Pelican Bay that 
had put the Department before a federal court as well as subject 
to media interest. I needed to see for myself any problems 
experienced at Pelican Bay, and to see whether they were fixed. 
If they were not fixed, to find out what was being done to fix 

It really pleased me with what I saw at Pelican 
Bay. We have come a long way in the area of providing secure 
setting for extremely violent felons, California's worst and 
most difficult offenders. 

I would also like to add that while at Pelican 
Bay, I met the ideal person to fill the position of Chief Deputy 
Director of Field Operations, and that person was Steve Cambra, 
then Warden of Pelican Bay. He really showed me a lot as to 
what he had done at that facility. 

The next institution I visited was California 
State Prison, Corcoran. This was another institution with a 
recent troubled history. I wanted to ensure that the problems 
there were being addressed and solved. 

I am very comfortable with the California State 
Prison, Corcoran, and it is headed in the right direction under 
the firm and reasoned leadership of Warden George Galaza. 

I would like to point out that it was not just 
because these two institutions had made it into the media that 


drove me to these places. What drove me was that these two 
places had experienced some past problems. I wanted to 
determine what caused the problems, and I wanted to see what 
could be done to prevent similar problems at institutions 
throughout the system. 

I also wanted to determine if the resolution to 
these various problems in the prisons could also be applied to 
others. I see it as more than a preventative style of 
management. My personal view is that many of the security 
procedures at Pelican Bay and Corcoran should be extended to 
other prisons with high security prisoners. 

After touring the two maximum security prisons, I 
set out to visit the rest of the institutions. I needed to see 
that we, as a department, were taking care of the tasks of 
housing inmates in a safe and secure manner, in addition to 
properly addressing public safety. 

The primary focus of my tours was to first 
determine the level of security was being adhered to at all the 
institutions, and I was very pleased with what I saw. I saw all 
the medium and maximum security prisons. Nevertheless, the 
Department has experienced several escapes from our camps and 
minimum security facilities. The two escapes from medium 
security facilities had also occurred in the last year. 

Since the situation is not acceptable, we needed 
to find the best course of action to diminish this area of risk 
to the public. I currently have staff looking into additional 
security measures that can be utilized in these areas. 

During my tours, I also focused my attention on 


the level of medical and psychiatric care available for inmates 
incarcerated in the Department of Corrections. The level of 
care at all CDC institutions is very acceptable, in my opinion. 
I am confident that we can offer prisoners of the state 
correctional system the basic medical and psychiatric care that 
we are required to provide. 

Frankly, I've seen extraordinary changes in the 
medical and psychiatric care since I left in 1991. 

The extent of available programing in CDC inmate 
population was another part of the operation I wished to target 
in my tours. I believe that inmate programs have varied degrees 
of importance. First and foremost, the diverse educational and 
vocational programs can provide the needed skills and attitude 
to support inmates towards their positive reintegration into 
society. The more comprehensive the program, the greater the 
likelihood of successful reintegration. 

Finally, I would like to address my greatest 
concern from the visits I made to the prisons. I can sum it up 
in one word: capacity. It appears certain to me that we are 
going to run out of bed space early in the year 2000. I have 
walked through every gymnasium in the state. Virtually every 
gym has inmates housed in them. Most of the inmates are in 
double or triple bunks, lined up in rows like crops. In some 
gyms, there is barely enough room to walk between the rows, and 
visual observation can be described as inadequate at best. 

This is the future of California Corrections 
unless reasonable solutions can be reached. I believe that 
every alternative needs to be explored for the future housing 


needs of California's convicted felons. I see some viable 
options for the low level minimum security inmates, but the only 
solution for the higher level inmates is more secure bed space 
and secure institutions. 

I know that the road to addressing new beds in 
the state's prison system is rocky. I know that passions run in 
many directions on this subject. 

I believe that regardless of our point of view on 
issues of alternatives, financing options, and rehabilitation 
programs, we need to add beds to this system. We need to do 
this to protect the public. We need to do it to protect the men 
and women that work in the system, and by no small measure, also 
protect the inmates that have to live in these facilities. 

My door will always be open to discuss any form 
of proposal that enables us to protect those at risk within the 
criminal justice system. 

Let me close by telling you that, overall, the 
prisons are in good shape because most are well designed. And 
most importantly, we have good managers and good supervisors, 
and an outstanding group of dedicated staff. 

I am happy with the level of security in our 
prisons, and we have a good health care delivery system and some 
valuable inmate programs in all the institutions. 

We just need to make sure that we have room to 
accommodate the inmates that will be coming into this system. 

With that, I'll end my prepared comments. 

I think some of the issues that you'll bring up 
are things that I would like to talk about. So, as I said 


before/ it's a large system, and I met some interesting people 
going around the line staff. 

To me, the California Department of Corrections 
and the concern that you have, frankly, are only going to be 
fought and they're only going to be settled by the Director of 
Corrections being out in the field and talking to the people. 
We've got staff out there. 

We see some things in the paper. We have 43,000 
employees, and there's going to be a situation here and there, 
whether it be a manager, whether it be a line staff member, but 
the people I saw out there have a lot of pride. They want to do 
a good job. Frankly, it's probably one of the most difficult 
jobs I've ever seen. 

In some of those gymnasiums I went into, there's 
two officers there. There may be 300 people sleeping in that 

I have to say, when I go around and talk to those 
officers, I ask, how did you get here? A good part of those 
people — in fact, I'd say 99 percent of them — said, we're 
here because we want to be here. They have a choice in a lot of 
cases where they can work under gun coverage in a Secure Housing 
Unit, but the people I found in those gymnasiums liked to be out 
there because they can talk to inmates. They can work out 
problems. To me, that's where the solution is. And there's 
people that are holding those facilities together by virtue of 
the fact they do interact, they do care for the people. They 
identify and do as much as they can. 

I did not expect to find the pride. I did not 


expect to find the degree of commitment in the Department of 
Corrections because of its size, its vastness. I really 
thought because of the size of facilities, there would be a 
general indifference to what happens in there. I found a lot of 

CHAIRMAN BURTON: It's because of the top-flight 

MR. TERHUNE: That's right; that's what it is. 

But anyway, I'm very proud to be here. I have an 
opportunity. To me, it was the opportunity to finish out a 
career that I very much wanted, and thank God, the Governor 
asked me to do it. 

CHAIRMAN BURTON: Senator Hughes. 

SENATOR HUGHES: You talked about your visit to 
Pelican Bay. After going there, what did you decide you could 
. do with an impossible situation, a situation that had so much 
violence? How did you feel after you left there? What did you 
commit yourself to do or try to do to help alleviate a situation 
like that? 

And what do you think about the double celling 

MR. TERHUNE: Let me take the first part of it. 

The first thing that we looked at, we talked 
about, was what were the procedures? What were the policies? 
How well did the staff understand the escalation of force, how 
you use force in a facility like that? 

I have good reason to believe that that was the 
problem, and I say that in the past tense. The thing that 


convinced me that the Warden knew what he was doing was that he 
had a very clear-cut set of policies of how you use force. 

As you walked around talked to the line officers, 
there was no doubt in my mind, they understood what was policies 
were and how they would be applied, and probably more 
importantly, the rationale for it. Why you would get — when 
and why you would have to kill somebody. And it was very clear 
to me that that message was over; that that is absolutely the 
last thing that you do. And they knew what the steps were to 
get to that point. 

The other item, California is the only state, I 
believe, right now — and I could be wrong — that is double 
celling in the SHUs and Administrative Segregation. 

If I knew where there was some spare space — and 
I guarantee you, I walked around, and we are aren't squirreling 
away any cubby-holes where you could sleep people. I guarantee 
you that. 

We've got 2,000 right now, 2,000 cells that are 
dedicated to Security Housing Units. We've got 3,000, roughly 
3,000 people in them. So, to go into a single cell mode in 
those facilities, we need another thousand beds. We don't have 
another thousand beds. 

I think I'm comfortable with the procedures 
they're using. The case — the officers, the lieutenants — 
lieutenants are the key, and the captains, in making the system 
work. They go over the case factors. They go over them in 
great depth, and eventually they sit with two people that are 
going to bunk together. They sit them down. They talk it over. 


They go to find out if they've ever bunked together; what their 
gang affiliations are. They go through all that kind of 
process, and eventually, they get a contract signed. Say, hey, 
Cal. John wants to bunk with you. You sign the contract. 

We have some people that lie. Some of the 
inmates, they're going to say, hey, we can live together, and 
they have no intention of fulfilling that contract. And we 
certainly have some violent ones, and there's been a result. 

It bothers me. Frankly, if there's a way of 
getting out of that, and I think this is the question you're 
answering [sic]. Senator, I'll do it. I think to me, that's one 
of the highest priorities. 

SENATOR HUGHES: Do they ever have like a trial 
period to say, we'll let you guys stay together for six months 
and see if it works out? How frequently — 

MR. TERHUNE: Oh, it's more often than that. 
It's reviewed every month. 


MR. TERHUNE: Yes, when they come in for their 
unit classification, they go over and say, hey, you folks still 
want to bunk together? To me, that's essential. 

But the thing is, it happens — or there is a 
pattern that it seems to happen pretty fast. If it's going to 
happen, it's going to happen right away. 

There have been, I think, some exceptions where 
they've been there a long time, and I guess as anybody's been in 
a marriage for a long time, every once in a while, I guess you 
know that you can get some tensions going. 


SENATOR HUGHES: I know the institutions have had 
a problem, too, with violation of the Americans with 
Disabilities Act. There's currently a lawsuit. 

What is the status? Do you have any idea of what 
the status of that lawsuit is? 

MR. TERHUNE: Again, there's some things I know a 
little bit about. I certainly don't know — I'm not comfortable 
with my depth on this. 

Yes, we're in the lawsuit on that particular 
matter. TUid at this point, I'm personally looking at options. 

We don't have the capital outlay money to do the 
corrections in some of the existing facilities. So, some of our 
facilities have accommodations already completed. So, what we 
are trying to do to see if we can find a way is, that we make 
the services available. 

Example, if somebody has a disability, and the 
facility that has a drug program isn't adjusted to accommodate 
for this disabled person, I'm going to try to move the services 
to where they have been converted. That's where we are right 
now. We've taken a look to see what we can do. 

I think we'll be talking to you during the budget 
hearings on this to see if that's something that would be 
acceptable. As I understand, as we speak, probably the 
attorneys are talking about what our approach is going to be. 

I think we can do that. I think we can do some 
things right now. 

To me, if we have some facilities that 
accommodate disabled, why can't we bring the services, the 


1 programs, to where the accommodations are made. 

2 SENATOR HUGHES: Was it not true that at some 

3 point in time the Department was pursuing a change in the 

4 federal statute? 

5 MR. TERHUNE: It still is. 

6 SENATOR HUGHES: It still is vigorously? 

7 MR. TERHUNE: Some things I deal with, and some 

8 things are dealt at a higher level. Yeah, I think it's probably 

9 being explored vigorously. 

10 SENATOR HUGHES: How does the Department actually 

11 identify ADA inmates? 

12 MR. TERHUNE: For the medical and the 

13 psychiatric, the assistant comes in in our 13 reception centers. 

14 There's clinical staff that go over. They administer tests. 

15 They do the psychologicals. They run the medical test. 

16 That area I'm very comfortable with. It's done, 

17 and the monitors have been watching that in the various lawsuits 

18 that we have. And they've taken a look at it, and we seem to 

19 pass muster pretty well. 

20 The biggest problem, I'll tell you right now, is 

21 recruiting and retaining psychiatric and medical staff. If I 

22 have a wish, it would be that we could, frankly, pay people more 

23 in these problem classifications. We can't get social workers. 

24 We have hard time keeping psychiatrists. Those seem to be the 

25 two problem classes. Undoubtedly, there's probably some 

26 others. 

27 The area, and it'll come up at discussions 

28 probably in some of the hearings this year, is the 


identification of people coming in that are mentally retarded 
and developmentally disabled. 

SENATOR HUGHES: How do you think this really 
affects the operation of the prison system? Does it have a 
major effect or a minor effect? Is it a major problem for you? 

MR. TERHUNE: I was used to a system where we did 
identify them, because it was very clear in the Youth Authority 
that we had to do it. 

I think the only time that I ever had to — I 
think only time I ever really lost a lawsuit was around that 
particular issue. It was an oversight, and as a result, we 
agreed to some things. They were good things, because the 
youngsters that came into the system really needed it. 

I've talked to some officers, and I did know of 
some cases that were out there that were developmentally 
disabled. As I went around and talked to the people on those 
housing units, it was very clear to me that the officers knew 
who had to be given some special attention. Now, these are the 
ones that maybe were very obvious. 

There may be some in there that aren't as 
obvious, because the one thing that we have found is that 
persons with this kind of disability have a way of masking it at 
times. They can put on a facade and it's pretty hard to pick 
up. How good we are in this area, I just don't know. 

I do guarantee you this, that within the 
resources that we have, we're trying to come up with an 
identification system to spot the people as they come to the 


CHAIRMAN BURTON: May I ask a question? 

How or why would a developmental ly disabled 
person in a prison want to mask being smart? 

MR. TERHUNE: It's something, I think, they come 
up with, I have felt sometimes — 

CHAIRMAN BURTON: In other words, they were 
masking it on the outside? 

MR. TERHUNE: Well, before. They didn't develop 
when they came in the system. 

CHAIRMAN BURTON: I mean, acting like — I got 
it. Thank you. 

SENATOR HUGHES: Now, there was a big problem 
with grooming at Folsom State Prison. What's happened recently? 
Is there anything being done about that situation? 

MR. TERHUNE: No. The Department is moving ahead 
with the grooming standards. I believe — I'm going to put 
rough estimate — that we're probably one- third into it, or 

Couple interesting things did happen. At three 
of the prisons, the inmates said, well, we won't cut our hair 
for you, but we will cut our hair for some youngsters. So what 
they did is, they bundled up the hair and sent it off. There's 
apparently two groups that collect hair and make wigs for 
youngsters that have chemotherapy. So, it's being cleaned, and 
it's being boxed and sent off to them. 

But at this point, we're moving ahead. There 
hasn't been in the last few weeks any resistance, strong 
resistance, that I know of. 


SENATOR HUGHES; I'm glad to know that something 
positive is coming out. 

MR. TERHUNE: That's one of the positive things. 

SENATOR HUGHES: That's really good. 

You did tell me to ask you that question; didn't 


MR. TERHUNE: Thank you. 

SENATOR HUGHES: What about weights? Are all 
weights being removed? 

MR. TERHUNE: The weights were gone as of this 
second, and we are — the substitute, the exercise bars and the 
workout stations, are being put in. 


CHAIRMAN BURTON: Senator Ayala. 

SENATOR AYALA: Let me indicate that I have had 
the occasion to visit and converse with Mr. Terhune since he 
took office four or five months ago. We do have number of 
prisons in my district, and a problem had surfaced, and I want 
to say that Mr. Terhune has handled it very professionally, and 
that it was a job well done of those problems that surfaced 
since he took office. 

Mr. Terhune, I see in your bio that you worked as 
a correctional consultant for ABT Associates of Cambridge, 
Massachusetts from '91 to '94, that you were a site visitor for 
the United States Senate, studying "Conditions of Confinement of 
Juveniles Study." 

What conclusions did you arrive at with that? 


What was the study about? 

MR. TERHUNE: Well, the study was authorized by 
the U.S. Senate to go out to the field, to visit throughout the 
United States. I happened the get most of the western states 
except California. To take look and see what the conditions of 
confinement were in terms of various standards, generally the 
American Correctional Association standards, of how juveniles or 
young adults were being held in facilities throughout the 

Frankly, after going out and taking a look, some 
of the places that were supposedly to be the best — best states 
in the United States, didn't look quite in a good. They really 

And part of the process was going out, and I 
would live for about three days in that facility. Get up when 
the inmates got up. Ate with them; stayed with them; stayed in 
the facility until they were put down. To get a feel of how 
they were treated, what the caliber of the staff training was, 
what their procedures are, how many lawsuits they had, how they 
were fed, what the visiting procedures were. 

It was really to do an audit in terms of the 
standards as to how well they were operating. Then, I would 
make a report, and that eventually went on to the U.S. Senate. 

SENATOR AYALA: I understand that the State of 
California has the highest parole revocation rate than any other 
state. One-third of the prison space is taken up by those whose 
parole had been revoked. 

What are we doing wrong? I know that ' s not your 


particular field/ but how can we improve that? 

MR. TERHUNE: Let me back up a bit on this. 

I've been around for a few years. I remember the 
dayS/ frankly, when we used to pride ourselves on having a 20 
percent violation rate. 

Well, there would be a few philosophy. A new 
board would come in, and all at once, your violation rate would 
go up to 4 percent. Another administration would come along, 
and your violation rate would go back 20 percent. 

We weren't doing anything a heck of a lot 
different. It was the same staff, the same programs and 
everything else. It's a change in the attitude towards 

There was a period of time that you couldn't get 
a parole violation if you had back-to-back armed robberies. I 
kid you not. There was a time — 

CHAIRMAN BURTON: You wouldn't need them, would 
you? I would assume you have a trial and do some pretty heavy 
time for your back-to-back armed robberies. 

MR. TERHUNE: Yes, but there were also a lot of 
times, you know, you can have a fairly serious offense, and this 
was many, many years ago, where you could go into the judge in a 
juvenile court, and his staff would say, hey, handle it as a 
parole violation. 

And then there would be a change. And any time a 
person came in with a reportable offense, they would be 

Right now, California is holding parolees 


1 accountable for their behavior. It's very clear. It's out 

2 front. The regulations are out there. 

3 And this was talked about in the previous 

4 confirmation hearing. Right now, about two-thirds, I believe, 

5 of our parolees or violations are coming in without new terms, 

6 meaning it's a technical violation. That's been going up. 

7 At the same time that those are going up, the 

8 number of returns with new terms are going down. There seems to 

9 be an inverse relationship. As you're pulling people off 

10 parole, pulling them in before they commit a serious offense, 

11 they don't come in with the new terms. 

12 So, in a sense, you could argue that the attitude 

13 is, hey, we're preventing new offenses by bringing them in 

14 earlier, 

15 SENATOR AYALA: You're saying the status quo is 

16 doing the job? 

17 I'm told that if we had a way to keep these minor 

18 violators from parole violations, that we wouldn't need any more 

19 prisons because one-third of those in prison today are parole 

20 violators. 

21 I know what you're saying, but are we getting a 

22 different type of criminal out there that needs more 

23 surveillance, and bringing them back as soon as they violate the 

24 parole? Are we doing something that we weren't doing before? 

25 MR. TERHUNE: Let me just talk a little bit about 

26 some changes. 

27 I told you about I was pleased with what I saw in 

28 the medical and psychiatric services in the Department of 



There are some things that do bother me that I 
see. I don't think I can do anything about it, but maybe it's 
some of things we can reason out together. 

When I left in '91, parole caseloads were 52 to 
one. That means, with that kind of a ratio, that parole agents 
can go out, do more in terms of brokering services, get people 
in drug programs, provide more contacts, field contacts, provide 
more kinds of support systems. 

I come back now, and the parole caseload is 
something like 82 to one. It's harder to come up with a decent 
parole program. 

I am a firm believer that parole services, a good 
parole program, with parole agents out, with some resources, 
some money to buy a drug program, a decent placement, some help 
in providing jobs, can keep people out. But you have to come up 
with a decent program. 

If I was a board member, and we couldn't come in 
with a decent parole plan that covered public safety, provided 
supervision, provided accountability, I wouldn't continue that 
person on parole. I'd revoke him. 

It's Parole's job, it's Department of 
Corrections' job, to come in with alternatives, reasonable, 
safe, public safety alternatives to the parole board. 

And frankly, I've found over the years, parole 
board -- if you come in, and you come in with a decent plan, and 
able to deliver on it with credibility, they'll go along with 
you. If you can't provide that, then they are accountable to 


1 the public. They have to do what they have to do, and they 

2 revoke them. 

3 SENATOR AYALA: I raised the question of those 

4 electronic monitoring devices with another gentleman. You 

5 raised your hand. Would you be willing to answer that? 

6 MR. TERHUNE: We have 15 today on electronic 

7 monitoring. 

8 SENATOR AYALA: Fifteen out of all the people out 

9 there? The Youth Authority has many more. 

10 MR. TERHUNE: I believe so. 

11 SENATOR AYALA: I don't mind saying publicly that 

12 I'm not happy with the way they do it. They start monitoring 

13 some of these people at five o'clock on Friday. They don't pick 

14 them up until Monday when they come back to work. There's a 

15 matter of record that some of these have committed murder and 

16 rape during that weekend. And apparently the Director's happy 

17 with that/ if that's the best we can do. 

18 I saw him on t.v. the other day indicating that 

19 we pick it up as soon as we can. 

20 I don't think they should have one day. In fact, 

21 when they turn them loose in the daytime, they do whatever they 

22 want. There's records of them having committed murder during 

23 the time they're supposed to be working. 

24 But you only have 15 of these? 

25 MR. TERHUNE: The 15 we have, they're on 

26 constant. They're being read. These are high notoriety cases, 

27 and it's a supplement to the parole plan. It's not in lieu of 

28 anything else. 


SENATOR AYALA: You're not involved to a great 

MR. TERHUNE: No. I think there's 71 that 
will be coming out on the monitoring. We're looking at, I 
think, three different models. We're doing one right now, I 
think, a wristwatch arrangement. There's 80, and that test will 
be up, a 90-day pilot program, will be up the end of this month. 

SENATOR AYALA: Your Department has proposed an 
additional one-and-a-half million to conduct investigations of 
criminal activity and other serious misconduct by departmental 

You're talking about correctional officers that 
you have to investigate. 

MR. TERHUNE: Managers, supervisors. 

SENATOR AYALA: Why do you need that much more 
for investigative purposes? 


When the Governor talked to me, one of the things 
he asked me to do was, if I took the job, he wanted me to make 
absolutely sure I took a look to make sure that we have a well 
staffed — and he used the term, well staffed — and well 
operated internal affairs system. 

I was very pleased that the foundation had been 
done. I didn't hire the gentleman that hired a commander out of 
the Oakland P.D. That was formerly with the internal affairs 
system there. 

The Department had taken resources and put, I 
believe, it's 40 investigators on. And currently, as I speak. 


1 each investigator has 12 assigned cases, and each one of those 

2 cases sort of average out, it's going to take about 80 hours. 

3 I meet every morning that I'm in the office with 

4 the head of Internal Affairs. I'll give him all the resources 

5 that I can. 

6 Yes, we have a bunch of investigations out there, 

7 and it ranges all the way from a line officer to a warden. And 

8 they're being looked at. 

9 To me, there's two things that you can do for 

10 staff. And that is to have a timely, well done investigation to 

11 prove that the person is innocent of the charges or guilty of 

12 the charges, whatever it happens to be. 

13 The Department, I feel, needed a separate 

14 internal affairs system, not require that the Special Services 

15 Unit that handles inmate investigations, don't blend the two 

16 together. Have them totally separate. There's a basic system. 

17 We're coming in and asking for some more because 

18 there's a workload argument. I hope we can get it. I'll tell 

19 you one thing, that is one that ' s very high on my priority, to 

20 get it well staffed. 

21 SENATOR AYALA: But 30 positions is a major 

22 augmentation. 

23 Do you find that we're not doing a good job of 

24 investigating, or a poor job, or none at all? 

25 MR. TERHUNE: There's a backlog. You see, this 

26 is the thing. There's so many cases out there that should have 

27 been addressed. They were identified, but just the process of 

28 getting them done. 


I had some shell shock coming into this job. I 
was used to a department that was much smaller. The amount of 
investigations, the amount of time that I'm spending on it, 
because to me it's important because an officer's career is on 
the line if they don't have a well done investigation. 

I guarantee you, and I'll guarantee the Budget 
Committee/ if it proves that it's too much, I'll be the first 
one to come in and say, hey, you can have these positions back. 
Because there is a possibility, once we get over this hump, all 
these cases that are out there, this backlog, it may drop down. 
And I guarantee you, I will come back and say, hey, take the 

But right now, those positions are over assigned. 
We have cases that I wish were closed up right now, and they 
are not, and they aren't even close to getting to be addressed. 

SENATOR AYALA: Is there a statute of limitations 
for these cases? 

MR. TERHUNE: Yep, three years. And there are 
cases that we may investigate, but in a way the whole thing's 
going to be academic because it's passed the statute of 

There isn't a statute of limitations, I don't 
think, on the exempt employees. So, in some cases, I would go 
ahead and do it just for that reason. 

SENATOR AYALA: I have no more questions, Mr. 

CHAIRMAN BURTON: I've got a few. 

I'm sort of troubled how you and the last person 


1 either justify or rationalize these technical violations, 

2 because if we violate somebody from not showing up at a meeting 

3 with his parole officer, we've prevented triple murder. I don't 

4 buy into that. 

5 What I would like to know, and I know you don't 

6 have it here, but I've seen the kind of statistics that can be 

7 generated, is the offense that first puts the person in jail or 

8 prison. And I'm talking about people returned on technical 

9 violations that Senator Ayala was talking about. 

10 This is a big debate that we have. And many, 

11 including Senator Lockyer, who's at least been a leader in this 

12 area, that we got whole lot of people in these prisons on techs, 

13 that if they weren't there, you know, there might be room to get 

14 somebody out of the gym. 

15 So, what was the offense that put them in prison, 

16 and what was the violation that sent them back? In other words, 

17 you have a XX murderer or child molester who always did that 

18 when he or she was drunk, and then they got picked up for being 

19 drunk. That's somewhat less of a technical violation than 

20 somebody that stole two cars and missed a deal, if you get what 

21 I mean. 

22 Now, what are they doing, and what programs do 

23 you have? Literacy programs? Do you have enough money for 

24 literacy programs within the prison, or do you need more? When 

25 you come in with a budget, are you going to ask for that? 

26 I don't mean this critically of you, but because 

27 of necessities, that's going to take a back line somewhere. 

2 8 MR. TERHUNE: We don't have any package coming in 


this year in terms of the literacy. 

CHAIRMAN BURTON: Doesn't that sort of help? 
When they get out, they may not come back? 

MR. TERHUNE: We are taking a look right now of 
what we can do with our existing resources to beef up the 
literacy program. I will be getting a report, hopefully in a 
month, on that particular issue. 

We have some programs. 

CHAIRMAN BURTON: I know. My brother taught 
school at San Quentin for 20-some years. 

MR. TERHUNE: There aren't enough. 

We've got 20,000 people, inmates out there, with 
no programing. There is no program. They aren't in vocational; 
they aren't in academic. There's nothing out there. 

CHAIRMAN BURTON: What would it cost to take care 
of ~ 

MR. TERHUNE: A bundle. 


MR. TERHUNE: Well, for one institution, I had 
looked at — if we took one institution and totally programmed 
it so that everybody had some kind of assignment, whether it be 
literacy, whether it be in vocational — 

CHAIRMAN BURTON: Right, got it. 

MR. TERHUNE: — the price tag on that, and that 
was for a 5,000 bed facility, I think it was around $5 million. 

CHAIRMAN BURTON: In theory, it might be cheap at 
twice the price. 

MR. TERHUNE: Could be. 


1 CHAIRMAN BURTON: I think the last person who was 

2 up, when you take a look at the people in prison and you take a 

3 look at the educational component/ violent crimes-college 

4 education, unless somebody shot, you know, their spouse or 

5 something, hardly anybody. Community college, hardly anybody. 

6 High school, a few. Under high school, the bulk of them. 

7 How about twelve step programs? We tried to do 

8 something, and we were told like there wasn't room. You can 

9 have a twelve step program in a toilet. 

10 MR. TERHUNE: Yes, we bring in twelve step. 

11 We're increasing — there'll be another package, 

12 I think, this year we'll be coming in for increasing the number 

13 of drug programs. All of them include twelve step. To me, 

14 that's the one I have seen that has consistently worked. 

15 CHAIRMAN BURTON: And you can do twelve step at 

16 no cost. 

17 MR. TERHUNE: Because you get a lot of 

18 volunteers. You get all kinds of people come in on that. 

19 CHAIRMAN BURTON: One argument, and I forget who 

20 had it — I think Dick Rainey had the bill — and, you know, 

21 well, they didn't have the room for these things. 

22 TVnd my comment was, you may not have the room for 

23 the Delancy Street Omega Boys' Club model, but you certainly 

24 have the room for AA meetings that can be done at nothing. And 

25 even if there were inmates that couldn't do it, depending on 

26 where you are, but like at San Quentin, there 'd be people that 

27 would come over from the community that are in these programs. 

28 MR. TERHUNE: And they are. 


CHAIRMAN BURTON: You talked about that almost 
everybody's double celled? 

MR. TERHUNE: Ninety percent of the general 

CHAIRMAN BURTON: What was the big problem with 
the Polanco bill that said everybody had to be double celled? 
There was a lot of opposition to that, that sort of made sense, 
but in a way it didn't make sense, because, well, they're 
doubled celled, anyway so don't tell us to double cell them. 

Now, it would seem to me, and I try to picture 
myself, I guess, in jail, for want of a better word. Would I 
want to be by myself, or would I want to have somebody to talk 
to and play gin rummy to? And I guess I would want the guy to 
play gin rummy to when I felt like playing gin rummy. When I 
didn't, I'd want him out. 

But there should be maybe, given the cost, it 
would seem so me there might be some way with the correctional 
officers, with the Department, and with Senator Polanco, maybe 
there's some kind of solution to do that. 

I know there's some people you don't want to have 
in the same cell because, oh, yeah, we're going to get along 
together just fine. Then the reason they're in there, they both 
want to bang each other's head to see which one can kill the 
other one first. 

MR. TERHUNE: Yes, that happens. 

CHAIRMAN BURTON: I would hope, because Polanco 
keeps coming back with that bill, and I get tired of fighting 
with him, I'd like to see if there's any way. 


1 MR. TERHUNE: I think we're together on the 

2 figures at this point. The last I've heard, we've gone over the 

3 figures, and there seems to be agreement. I could be wrong, but 

4 I think we've got a lot of movement. We have a plan. 

5 CHAIRMAN BURTON: I think he was almost talking 

6 about the newer prisons, building rooms for two, so to speak. 

7 MR. TERHUNE: In a sense, we are. 

8 Frankly, the Department was saying, hey, 90 

9 percent of the cells are double. Give us 10 percent just 

10 because of the people that play hell living together. They 

11 can't do it. 

12 CHAIRMAN BURTON: A couple other things quickly. 

13 What's the status of the lawsuits with the 

14 Department and the cities? 

15 MR. TERHUNE: I'll be meeting tomorrow with the 

16 • city people. At this point, we're coming together. I'll meet 

17 with them. What I would like to have them do — 

18 CHAIRMAN BURTON: Where's the money going to come 

19 from? 

20 MR. TERHUNE: We've found — I found a little 

21 bit, enough to take care, hopefully/ of the first two years. 

22 There is a problem on the other years. 

23 CHAIRMAN BURTON: Is that money you're going to 

24 take out of your existing operating thing, or are you going to 

25 come to us for a flat appropriation? 

26 MR. TERHUNE: I think we'll try and play both 

27 sides of the street if we can. 

28 CHAIRMAN BURTON: Just before I get into one of 


my pet questions, what's the policy on dental care for inmates, 
and specifically the female inmates? 

I heard you kind of say things were hunky-dory, 
and we keep hearing that they're not. 

MR. TERHUNE: There's a dental plan on every 
inmate . 

CHAIRMAN BURTON: Right, you've got a big plan. 

MR. TERHUNE: If the teeth, as I understand, that 
are needed to eat, they'll get them. If they're doing work 
around a tooth that's missing and it would be more of a cosmetic 
job, they would go ahead and do it. 

But, there are a lot them, because I've seen it 
in going around, and particularly — it's a tough one to get 
into, but for some reason, I've noticed more dental problems, 
missing teeth, in the female institutions than I have any place 
else. I don't know whether it's more noticeable or something, 
but I have to say it is — 

CHAIRMAN BURTON: That's why I said specifically 
women . 

MR. TERHUNE: Yes, whether it's — 

CHAIRMAN BURTON: I'm not saying why it happened. 

MR. TERHUNE: I'll have to look at that one, but 
I am guaranteed that — 


Ruben was ahead of me, but I remember when I went 
into the Army. If you had any trouble with a tooth, they just 
went whoomp. 

MR. TERHUNE: You got it, or they'll fill it 


1 without Novocaine. Have you had that experience? 

2 CHAIRMAN BURTON: On the so-called, and it was 

3 never really called the Inmates Bill of Rights, but on the 

4 legislation that went from Public Safety to recently related to 

5 legitimate interests, what's reasonably related to taking away 

6 law libraries. What's the legitimate penal interest in that? 

7 MR. TERHUNE: At this point, and I don't have all 

8 the information on this one, my understanding at this point, the 

9 Supreme Court has come down and said that the law libraries 

10 that, frankly, I was involved in putting in years ago, far 

11 exceed that that's required. 

12 CHAIRMAN BURTON: I'm asking you, what is the big 

13 deal? In other words, does it make the prison safer? Does it 

14 make the guards feel better? Does it make somebody feel better 

15 if you limit their access to law books and such? 

16 MR. TERHUNE: It's a dollar and cents issue. 

17 CHAIRMAN BURTON: No, you're taking stuff away. 

18 We're not saying they've got Cal. Ap. 2nd , don't get Cal . Ap. 

19 3rd . You're taking Cal. Ap. 3rd away. 

20 In other words, you're doing this on a fiscal 

21 basis? 

22 MR. TERHUNE: Yeah. The argument that I've heard 

23 is that it's being done on a fiscal — 

24 CHAIRMAN BURTON: So you don't have to buy 

25 supplements every year. 

26 MR. TERHUNE: Yes. 

27 I asked the question, you know, why not leave the 

28 stuff there since we already have it, just not replace it? I'm 


told -- I'm not an attorney — that it's more dangerous to have 
an out-of-date law book there than it is to have none. 

CHAIRMAN BURTON: That makes a lot of sense. 

SENATOR HUGHES: Mr. President, can I get back to 
the dental question? 

How frequently do the prisoners go for dental 
checkups? Do they only go when they have a toothache, or do you 
have a regular time for them to go for dental exams? 

MR. TERHUNE: I can't answer that one. 

SENATOR HUGHES: You know, I don't know whether 
it's mandatory. And if somebody refuses and stands up their 
dental appointment, what happens? 

MR. TERHUNE: Can I get back to you? 

CHAIRMAN BURTON: They'll probably say thanks. 

SENATOR HUGHES: The reason I'm asking is because 
that's costing us money to engage dental services, and then if 
the person doesn't show, you know, we still have to pay. 

I'd just be curious about that. 

MR. TERHUNE: I'll get back to you on that one. 

CHAIRMAN BURTON: I'd love to talk to the lawyers 
who are advising on law libraries, and what you're doing and 
what you're not. I mean, actually in fact, some of the stuff 
that they may think is a little goofy would probably be things 
law review articles and such, are things that nobody's using. 

To paper the Supreme Court with appeals, there's 
probably somebody who maybe really is interested in learning, 
and the more they're learning, the less mischief. 

The grooming standards, I think the excuses given 


1 for that are the dumbest things I've ever heard in my life. 

2 Now, if you want everybody to look uniform, I 

3 don't agree, but I can understand that. 

4 But if you have a beard, and you have long hair, 

5 and then you escape, and you get a haircut and shave off the 

6 beard, they're never going to find you again. 

7 Now, I would posit the question, if I have no 

8 beard, and I have short hair, I put on a wig and a false 

9 mustache, and you're not going to find me again. So, that seems 

10 to me is a very bogus reason for doing that. 

11 If you want everybody to look the same, maybe you 

12 do and maybe you don't, but at least that's kind of an honest, 

13 straight-forward answer. 

14 I would like to have the number of people with 

15 beards and long hair who escaped, cut their hair, shaved off the 

16 mustache, because I could not recognize Mr. Novey without his 

17 mustache. So, somehow, that brought this about. 

18 I mean, that wasn't the reason that's here. 

19 What's the reason for it? 

20 MR. TERHUNE: I think it was the last escape out 

21 of Vacaville that that did happen. 

22 CHAIRMAN BURTON: How about the guy who escaped, 

23 put on a woman's dress and a wig? That's not the reason. 

24 That one escape was the reason for this, I doubt 

25 it. 

26 MR. TERHUNE: In going around — 

27 CHAIRMAN BURTON: And if you don't know, I'll 

28 accept that, but it was on somebody else's watch. 


MR. TERHUNE: I'll give you my personal, and it's 
probably not worth that much. 

I have watched, in going around, watching 
officers have to run their hands through the hair to find out if 
there's a shank back here. The rolls that come down in some 
cases -- 

CHAIRMAN BURTON: How about the mustaches? Do 
you have to do that to see if they have a razor blade? 

MR. TERHUNE: Oh, yeah, you've got to get those 
mustaches . 

CHAIRMAN BURTON: Razor blade in a mustache like 

MR. TERHUNE: Now, with the hair, I have to say 
I'm not sure you can really do a shake-down of somebody that 
does have the long hair. It's tough to do. You can hide stuff 
in there. 

CHAIRMAN BURTON: Took them like 50 years of 
penal stuff to figure that out? 

How about the Sikhs? How about people whose 
religion requires beards and things? 

MR. TERHUNE: Well, at this point we can, as I 
understand it, I'm told we can go across the board. 

CHAIRMAN BURTON: You can do anything you want. 
Is it right? 

MR. TERHUNE: Well, no, we can't do everything we 
want . 

CHAIRMAN BURTON: Thank God, but is it right? 

You know, the Governor gave a great speech to a 


group about religious freedom/ and the next day he was issuing 
this thing. And I don't know anybody who, all of a sudden, is 
going to, you know, you can take a jaundiced eye if, all of a 
sudden, someone who's Irish says, you know, I think I will be a 
Sikh so I can have a beard, or something. 

But it would seem to me that when you're getting 
into what could be dangerous, I think just human grounds and 
religious, but dangerous ground when you start with people that 
it's a deeply held religious belief to have a beard or to have 
something, that I would just think it could cause some trouble. 

Some of the stuff, and I'm not the expert, but 
some of the correctional people I talked to are a little bit 
antsy about this, that, you know, freedom's just another word. 
You keep cracking down on irrelevant stuff, not really stuff 
that's safe for the institution, and then you could have a 
problem. I mean, you could have a problem that whatever those 
things that happened in Corcoran — and I hope I didn't hear you 
right, that that was all done according to regulation. 

MR. TERHUNE: No, I didn't say that. 


But it could be a problem. The weights and the 
bar bells, don't know, don't care, never lifted them. 

I mean, one argument is, but I guess you have 
other exercise equipment. People can work out their 
frustrations doing something. I guess they can't use the gym 
because people are sleeping in it, but doing something. 

And I know you don't want people to bulk up and 
be stronger than the guards, but there should be something. 


Let's jump rope/ a noose/ then they'll do that to somebody. 
Some type of thing where maybe they could work out some of their 
aggressions on equipment. 

Now/ the dress code, blue jeans, blue shirt/ all 
white, CDC prisoners, who cares. That, to lae, 1 don't think 
people cause trouble/ except the laundry bills will go up. 

The packages, I want to know how the people are 
selected that families have to buy the stuff from? What kind of 
contracts they get? What is the profit margin for them? 


CHAIRMAN BURTON: And isn't there some way that 
if a mother wanted to bake a birthday cake for somebody in 
prison, that she might be able to do it? You know, maybe you 
could x-ray it to see that there's not the old, you know, file, 
cake with a file in it. But that's prohibited, right? 

MR. TERHUNE: I guarantee you on that issue, I 
have a big concern as you do on this. We make sure that our 
prices are competitive and they can get it — 

CHAIRMAN BURTON: How about the birthday cake 

MR. TERHUNE: That's out. 

CHAIRMAN BURTON: Why? I mean, I know you could 
smuggle something in, but how many people have birthdays on the 
on the same day that they couldn't just, you know, put it 
through like they do with a piece of mail to the warden that 
could be a bomb? They x-ray it. 

MR. TERHUNE: I'll take a look at it. I hear 


1 CHAIRMAN BURTON: I mean, I know they're 

2 prisoners, they did bad stuff, but the more you dehumanize them, 
3. you may as well keep them there for life because I always hope 

4 that anybody that goes to prison comes out better than when they 

5 when they went in, not different. 

6 What happens is, and you know, I'm a bleeding 

7 heart, whatever, but I really think, the more you dehumanize 

8 these people, the less shot you have that they can be anything 

9 but worse when they come out. I don't think any of us want 

10 that. 

11 I know that they're in prison because they did 

12 bad stuff, but some that you're doing, to me, seems 

13 mean-spirited. It doesn't add anything to the safety. 

14 X-ray searches of visitors, that's all right. 

15 That's not body searches, right? 

16 Media access, that's Quentin Kopp's bill. 

17 Were you, or was it somebody else that's up 

18 today, that was on that Governor's Blue Ribbon Commission? 

19 MR. TERHUNE: I was on it. It didn't come up in 

20 the conservation yet. 

21 CHAIRMAN BURTON: I read it. So, you were on 

22 that like Rainey was on that, and Mimi Silbert was on that. 

23 MR. TERHUNE: That's right. 

24 CHAIRMAN BURTON: Are you going to do anything to 

25 help to push for the recommendations? 

26 MR. TERHUNE: I talked with Senator Rainey about 

27 that. We are looking into it. 

28 CHAIRMAN BURTON: But hardly any have even been 


MR. TERHUNE: We put a lot of time into that 
process . 

CHAIRMAN BURTON: Yes, and you had a very 
broad-based group, and you came up with some fair stuff. 

I think part of what Senator Ayala was saying, 
and Rainey's pretty smart. He calls them punishment options, 
which sounds better than whatever the phrase was that was in. 
Alternatives to incarceration are out; punishment options are 

MR. TERHUNE: That was his term. He coined that 
one during the process. 

CHAIRMAN BURTON: But we need to do something. 
That the bad people are there, that hopefully there's something 
that makes them better people when they come out. And if they 
are never going to be better, then they stay there as long as 
law allows. 

But that people that have a shot — I mean, I eat 
at Delancy Street three times a week. They've got murderers in 
there that, because of the Don White decision, got out. There's 
very few soft core criminals that work around Delancy Street. 

I mean, they've got a success ratio that's like, 
you know, people ask the first 30 days, they've got about a 
90-95 percent of people that never fall back either on drugs or 
go to the bucket. 

So, I do believe in if not redemption, in rehab. 
So, I just hope you do that. 

I think I had one more, which I have no idea what 


1 it is. You got my point of view, and I'm sure I'm in a minority 

2 in the house and on the Committee. But I believe that. I 

3 believe. 

4 You know, I had two friends murdered. I had my 

5 mother robbed and threatened with rape at knife point when she's 

6 84 years old, so I know something about bad people. 

7 But I also know that, if we don't do anything 

8 about the people in prison, almost better shoot them on sight to 

9 save the money. 

10 Senator Ayala. 

11 SENATOR AYALA: I have another question. 

12 However, I would like to say that I don't think 

13 it's dehumanizing people to clean up a little bit. We did it in 

14 the service, and we weren't criminals. We came out all right. 

15 I don't understand this bit of letting them grow 

16 . hair. I think if it's for the safety of the correctional 

17 officer, we ought to do it. 

18 I'm not concerned so much about the criminal 

19 who's there because they did something wrong. Obviously, they 

20 were a felony or something. 

21 I'm more concerned about the safety of the 

22 correctional officer. And whatever it takes, that's what we 

23 ought to do. 

24 We did it in the military. We had to get a 

25 haircut and brush our teeth, and I think we're okay. So, I'm 

26 not too concerned about that. 

27 ■ I do have a printout, dated the first of 

28 February, that indicates that there's 19,340 parolees that you 


1 don't know where they are. They've been lost up there some 

2 place in the shuffle. We can't find them, 19,340. 

3 What are we doing about those people that are out 

4 there loose, doing their thing? 

5 MR. TERHUNE: We have parolee at large unit 

6 that's working on it. They're willing — I believe that number 

7 is going down. It used to be larger than that. 

8 We have a unit that's working on it. It's a high 

9 priority with the Parole Division. 

10 SENATOR AYALA: You just can't locate them. 

11 Maybe there's an organization out there that would go after 

12 these guys, I don't know. 

13 CHAIRMAN BURTON: They know the names, right. 

14 MR. TERHUNE: Oh, yes. 

15 SENATOR AYALA: You know the names of all these 

16 people that are missing in action? 

17 MR. TERHUNE: There's a list. 

18 CHAIRMAN BURTON: Let's hope they're not missing 

19 in action. 

2 MR. TERHUNE: There's a close tie. There is 

21 organizations now between local police, sheriffs and parole in 

22 terms of working on this group because it's a hot group. Those 
2 3 are some of the folks that are more apt to — 

2 4 CHAIRMAN BURTON: What I'd like also, following 

25 that, is just like, are they like, you know, car thieves? Or 

2 6 are they like, you know, aggravated assault? 

27 - In other words, what level are people talking, 

28 because if they're like violent felons, and you know, really bad 


1 actors, having them floating around is not necessarily good. 

2 Speakers briefly in support, anybody? 

3 MR. SEARCY: Thank you. Senator Burton and 

4 Committee Members, for this opportunity to present some 

5 information to you. 

6 My name is Frank R. Searcy, S-e-a-r-c-y. I'm 

7 President of the Chicano Correctional Workers Association. 

8 Senator Burton, please let me offer my 

9 congratulations as the victor for this Chair. 

10 CHAIRMAN BURTON: Thank you. 

11 MR. SEARCY: Senator Johnston is my district 

12 Senator. So needless to say, there was some, a little bit, come 

13 on. Senator Johnston, get it. 

14 However, best man won. I think Senator Johnston 

15 and I both agree, yes, the best man won. 

16 CHAIRMAN BURTON: The luckiest man won, but thank 

17 you. 

18 • MR. SEARCY: The Chicano Correctional Workers 

19 Association thoroughly endorses Mr. Terhune for Director, 

20 Department of Corrections. We are aware of his extensive 

21 background in Corrections. We know that he has a reputable 

22 experience, and therefore, that is one of the reasons why we 

23 really support him and endorse him. 

24 May I add and may I offer, and this may be my 

25 opinion. When Mr. Terhune mentioned that all his experience was 

26 in the Youth Authority, I think he was maybe being modest and 

27 being humble. And I myself am offering that, because I think he 

28 does have the principles of an administrator, which is very 


obvious. Otherwise, I do not think that he would have been 
called to lead this department. 

The Department of Corrections right now has 
approximately 43,000 members. A few years ago, about three 
years ago, the former Director, Mr. Gomez, initiated a program 
which was Treatment of People at Herman Topps . Then, as a 
follow-up to that program, he also had established a committee 
as a team to go out and review the institutions and the parole 
divisions to see if that program was working or not. 

That team has come back and has been able to find 
some very good things, not all positives, sometimes negatives/ 
but that was all right because that then helped the institution, 
the warden, and it helped the Director of the Department of 
Corrections in correcting whatever had to be corrected, to take 
some action. 

Many times, there was no correction. Things were 
moving along the way we would want it to move, the way the 
Department would want it to move, and the warden would want it 
to move. 

When Mr. Terhune came in as Director, he 
recognized that that program and that team was a very, very 
valuable tool as a resource, so he continued it. That team 
continues to be in existence, continues to go out to the 
institutions, and continues to go out to the parole division 
offices in speaking with the employees and the staff members. 

I am thankful that I can say I am a part of that 
team. What we have found is that, yes, there are some things at 
times that could be changed, some action could be taken. 


When we leave the institution, we give the warden 
an exit interview, and we share these things with him. To our 
surprise at times, the warden will respond, yes, I am aware of 
that situation; yes, we are aware of it and we are doing 
something about it. Nevertheless, that information goes to the 
Director, and if needed, action is taken on that. 

Ladies and gentlemen, what I think I'm trying tc 
say is that again, Mr. Terhune, having the principles of an 
administrator, I think he is very capable, and we support that 
he is very capable of being an administrator. 

And we ask that you vote for his confirmation as 
Director of Corrections. 

Thank you. 

SENATOR LEWIS: Thank you very much. 

Next witness. 

MR. MABRY: Hi, I'm Roy Mabry, the State 
President for the Association of Black Correctional Workers. 

I'd also like to congratulate Mr. Burton for 
being the new Committee Chairman. And to Mr. Burton and the 
Senate Rules Committee Members, I also am a part of that team 
that Frank Searcy spoke about. 

I speak for my membership, give one hundred 
percent support for confirmation for Director Terhune. 

SENATOR LEWIS: Thank you. 

Yes, sir. 

MR. BAKER: My name is Bill Baker. I'm Mayor of 
the City of Taft, which is host to a community correctional 


I'm here to support the nomination of Mr. Terhune 
to this position. Since his appointment by Governor Wilson, we 
have found that he is accessible/ much more so than his 
predecessor. He is visible. He attended the opening of the 
first privately operated federal prison that is located in Taft, 
and took time while there to visit our CCF. And it is my 
understanding that he has also visited each of the state 

He is willing to discuss what we perceive to be a 
problem. He allows a reasonable hearing of a problem being 
discussed, even though we may not always agree on various 
aspects or the resolution of the problem. 

He is not hostage to staff, but he questions and 
makes independent decisions. 

He is an honorable person who seems determined 
and able to restore this agency. As you are well aware, CDC has 
problems every where and few allies. 

We have observed first-hand the unprofessional, 
unlawful, and coersive behavior of this agency. I refer to 
these extremely unfavorable traits in this manner: the 
arrogance of power over substance. 

Experiences in the City of Taft are not unique 
but common among SB 1591 cities, and also in a significant 
number of other prison host cities, including Mr. Terhune 's home 
city of lone. 

His determination and abilities are vital because 
CDC is an important agency of public safety, and it must be 


He is, in our judgment, the best opportunity CDC 
has to regain the credibility of the public, the Legislature, 
contract vendors, and prison host cities. 

In conclusion, I support the nomination of 
Mr. Terhune and encourage you to confirm him to this position. 

SENATOR LEWIS: Thank you very much. 


MR. CORCORAN: Thank you. Committee Members. 
Thank you for the opportunity to testify. 

My name is Lance Corcoran, just like the infamous 
prison in Central California of 60 Minutes fame. I'm here on 
behalf of the California Peace Officers Association, who 
represent the men and women who work the toughest beat in the 
state around some pretty horrendous people, namely state 

And while we don't generally provide endorsements 
to administrators, and we're not here to do that today, there is 
no opportunity on the agenda to take a neutral position. We did 
not have an opportunity to bring this before our Board of 
Directors before the announcement of the confirmation hearing 

We did want to get in a little gratuitous sucking 
up, if we could. 

The reality is that Mr. Terhune has been very 
willing to take on the issues facing Corrections today. 
Recently, he took a trip down to California State Prison at 
Lancaster. We had an officer murdered there. 

And Mr. Terhune was there at 5:30 in the morning. 


He greeted all of the staff coming in and coming off first 
watch, and then walked with the union to go out and visit every 
unit/ and talked to staff members, and helped them handle their 
grief. I think that speaks volumes for his commitment to his 
staff members. 

Department faces says so many very serious 
issues, privatization being one of them. Obviously, we are 
vehemently opposed to that. 

But there's also issues that are not quite on 
that level, but certainly they affect us on a daily basis. 

Adequate and unbiased investigations, and I 
think that we're seeing a commitment from the administration at 
this point to begin working that direction; although, I'm sure 
you'll hear folks in opposition that want to bring forward the 
discrepancies in the system. 

Training of staff, currently staff only received 
eight hours of official in-service training per year. Most of 
that training is towards shooting. 

Now, if you only train staff to shoot, then 
obviously you have a problem if they can't deal with problems on 
a personal basis. We'd like to see that expanded. 

Overcrowding and under staffing, currently 
California ranks 4 6th in the nation as far as inmate to staff 
ratios as far as correctional officers go. 

CHAIRMAN BURTON: That's better than public 

MR. CORCORAN: Thank you, sir. 

Of course, we have got the major issue out there. 


1 grooming standards. 

2 One thing that Mr. Terhune has shown is a 

3 willingness to listen and a very seemingly caring attitude. 

4 That's very much appreciated. 

5 So, we do take a neutral position. We are 

6 hopeful that the future will bring positive results. 

7 Thank you. 

8 CHAIRMAN BURTON: Is there any opposition? 

9 MR. BARNES: Good afternoon. My name's Rico . 

10 Barnes, B-a-r-n-e-s. 

11 MR. BRYANT: My name is Correctional Lieutenant 

12 Shelley Bryant. 

13 MR. BARNES: I'm a little bit nervous, so forgive 

14 me. 

15 Corrections is a department that is spinning out 

16 of control. We are a law enforcement agency unwilling to 

17 enforce our own rules. It is not enough not to lie, cheat or 

18 steal. We cannot tolerate among us anyone who does. 

19 This problem originates with those at the very 

20 top. The staff in the lower rungs who truly wish to succeed in 

21 this climate of debauchery must be willing to lie under any 

22 circumstances or be branded disloyal. 

23 In fact, the phrase, "loyalty to management" is 

24 the banner used by administrators to unify disreputable 

25 supporters when a high ranking official has been caught doing 

26 wrong. 

27 This alliance brings with it visible rewards. 

28 But as a law enforcement body, our reputation suffers 


egregiously . 

I am here in opposition to Mr. Terhune's 
confirmation because he has allowed the climate of lawlessness 
to continue under his supervision. Mr. Terhune has also 
insulated himself from hearing any information about managerial 
misconduct . 

I personally made 18 attempts to speak to 
Mr. Terhune from November the 12th, 1997, to December the 2nd, 
1997. I even tried to schedule a conversation with him, all to 
no avail. Mr. Terhune did not respond to any of my letters, nor 
did he answer the Speaker of the House's letter. 

Lieutenant Bryant sent numerous complaints, even 
certified mail, signed and delivered to Mr. Terhune's office. 
There was no response. 

This intentional ignorance is tacit approval of 
managerial misconduct and does not go unnoticed by rogue 

Mr. Terhune has allowed his wardens to treat the 
budget like their personal checkbook, to finance meritless 
litigation, pay off what I conclude to be poorly concealed 
extortion, and to defend the indefensible repeatedly with 
hapless litigation appeals. He has allowed high-ranking 
officials to escape punishment that is proportionate to their 
involvement in misconduct and is in keeping with good order for 
an agency of our size. 

Administrators who cannot control their base 
instincts and passions must be dismissed from state service, no 
different than a lower level employee. The ability to do harm 

1 with so much power is too great and too expensive. 

2 As I near my closing/ I would like to show you 

3 credible evidence created by those I criticize today, and in 

4 support of the drastic charges leveled against Mr. Terhune. 

5 But please consider this as you deliberate your 

6 choice of the next Director of the largest staff and most 

7 well-funded state agency. Mr. Terhune did not create all of 

8 CDC's problems, and I'm not perfect in my ability to do my job. 

9 However, several years ago, Mr. Gomez sat in this 

10 same chamber and faced opposition to his confirmation. 

11 Mr. Gomez acknowledged his detractors and promised to right the 

12 wrongs that they complained of. 

13 I submit to you today as an employee in the 

14 prisons since 1985, once Mr. Gomez was confirmed, he did not 

15 keep that promise. You will hear today about change, 

16 • transition, inmate population growth, and the complexity of the 

17 workforce. 

18 I submit those are constants in any large agency 

19 and must be dealt with during the review phase. 

20 If you choose to recommend Mr. Terhune for 

21 confirmation despite what is a questionable record to date, you 

22 are knowingly exposing the work site to abuse, while willingly 

23 opening the largest portion of the state budget to fraud and 

24 fiscal mismanagement. 

25 Mr. Terhune personally is not responsible for a 

26 large portion of the issues that I have raised over the past 12 

27 months and that I bring forward to this Committee today. He's 

28 not personally responsible for the acts of wardens at 33 


institutions and what they choose to do unlawfully. 

He is responsible, however, that when these 
issues are brought to his attention, to make himself 
unavailable. To attempt, and his staff below him, attempt to 
confuse the issues. The attempt to mislead other committees 
that are part of the Senate. 

And only prior to my coming to this Committee 
today was there any response on behalf of some of the issues 
I've raised either throughout the year, throughout the years, 
and even as late as last night. 

The first time this Committee heard from me as an 
individual was when Mr. Teasdale, Ms. Michel, and Mr. Hurdle 
visited Avenal State Prison in 1995, during Warden Madding 's 
confirmation hearing — confirmation process. The issues of 
lawlessness were addressed in a very lengthy complaint that I 
was told made it to the Committee. I'm not going to argue that 

Since then, and I'm solely talking about 
meritless litigation, managerial misconduct, and the frivolous 
appeals associated with it, it has increased. 

CHAIRMAN BURTON: Can you do me a favor. 
Lieutenant? You mentioned, I think, three areas, which were 
kind of broad. 

Give me like a specific managerial misconduct; a 
specific frivolous appeal. Well, a lot of us think sometimes 
appeals are. 

But, I mean, can you give — 

MR. BARNES: Yes, sir. 































MR. B7VRNES: I simply had my hand resting here in 
case you say, can I see that? 

CHAIRMAN BURTON: All right, so if you'd need a 
citation, okay. 

MR. BARNES: The issues that I raise surround my 
assisting other employees who have been the recipient of 
malicious prosecution from within institutions at the hand of a 
warden. It is no misconduct on my own part. It's solely that's 
retaliation for assisting those in enforcing the rules that we 
have in place becomes so abusive — 


MR. BARNES: An example would be in 1994, I 
represented a gentleman, a sergeant at Avenal State Prison. He 
was being punished via a demotion and a suspension. 

Prior to the action being taken, I notified 
Warden Madding in private in an effort to conceal the problem 
from the work site and to give him an opportunity to handle it. 
Warden Madding went forward with the punishment anyhow. It 
turned to what's called a State Personnel Board hearing. 

Although I was reluctant to do so, I represented 
the employee at the State Personnel Board. The Department of 
Corrections sent an attorney down. 

The employee was cleared of all the charges; 
however, the Department — the institution in the interim 
decided that I should be the subject of a voluminous amount of 
what's called unlawful retaliation. 

I reported it through the entire chain of 


command. Every person I could possibly imagine/ I wrote to. I 
even wrote to various Members of the Senate. 

Ultimately, after there being no response and no 
action, I had to file a lawsuit. One of the things about filing 
a lawsuit against an agency the size of ours, we have what's 
kind of like a scorched earth policy towards our own rules and 
towards the court system. 

The point is that what I was trying to do was 
rectify the situation without having to file a complaint against 
the warden and/or file a lawsuit. 

In the course of the lawsuit, there was still no 
action from anyone within my chain of command, up to and 
including Mr. Terhune's office. 

The trial was in September of last year. I won 
the trial with a 12-0 verdict in my favor. 

But what was alarming was, there was no rules, no 
policies, nothing presented by the Department to defend their 
position, yet they pushed it to trial. In fact, the Warden 
testified that when presented with policies, those rules didn't 
apply to him, of course, after he violated them. And he said 
the person who wrote the rules had over-stepped their 
boundaries, exceeded their authority when writing them. 

While there are many examples sitting here — 

CHAIRMAN BURTON: And the frivolous appeal was, 
they appealed your — 

MR. BARNES: It's kind of a Catch 22 there, sir. 

CHAIRMAN BURTON: I mean, you won at the trial 
level, they appealed? 


MR. BARNES: Yes, sir. They said they're filing 
an appeal. But they've also, just prior to me coming here to 
testify today/ I received a generous amount of FAXes, telling me 
that/ nO/ we're going to honor the judgment. And then the same 
day/ I received a FAX saying, no, they are filing the appeal. 

I'm not quite sure if one was to deceive me and 
deny me my presence here today. I won't attach a motive to 
anyone . 


MR. BARNES: My point is that these sorts of 
things — rule enforcement is cheap. In fact/ it costs you zero 
dollars to enforce Your own rules. I fall under those rules. 
It costs us nothing. 

It costs an exhorbitant amount of money to try to 
manage our prisons through the court system. 

However, my point of being here today iS/ if 
Mr. Terhune is insulated and cannot be reached when these sort 
of problems come up/ I'm not talking about the fact that he may 
be an egregious person. He's probably a wonderful person. I 
don't know him as a person. 

But under his current watch/ these things have 
occurred. Not that it didn't occur prior to him. 

CHAIRMAN BURTON: I understand, thank you. 

MR. BRYANT: Senator/ they're still occurring. 

I filed two complaints alleging managerial 
misconduct. I notified every one in my chain of command/ 
starting from the Associate Warden at my institution who deals 
with these matters, the Deputy Director of Institutions, the 


Deputy Director of Operations/ and Mr. Terhune's office himself. 
I have my memorandum to him with the recorded delivery by 
Federal Express. 

To this date, four months later, I have yet to 
receive a response. So, it appears the atmosphere for 
managerial misconduct and insulation when these issues are 
brought to air is still present, and that they go unnoticed. 

I stand here today to tell you, I will not be 
promoted past Correctional Lieutenant today because I have stood 
up and alleged managerial misconduct. 

And to justify my concerns, I can show you a 
memorandum where everyone in this Department has avoided my 
issues, and I tend to believe these issues have been avoided 
because they're air-tight. 

I have a well documented case of racial 
discrimination by a warden, an institution where black employees 
are not allowed to work in specific areas. And I've identified 
these issues to that entire chain of command. And to this date, 
I have not received a response. I have all that well 

But my point was, I had to go outside of my own 
department. I'm not asking for anyone in my department to 
arbitrarily just adopt my own position and my opinion. 

What I am asking for is that the administrative 
process be available to me, like everyone else in my department. 
And that's not available to me today. I had to go outside of my 
department, the agency, YACA, to have someone simply assist them 
in white-washing my complaint. 


1 And the memorandum from them basically told me 

2 that, yes/ you do have a complaint. We know that it is logged. 

3 It will be answered on February 12. Today is the 11th; tomorrow 

4 is a holiday. So, what kind of response do you think I can 

5 expect on Thursday, the day after the holiday, especially to 

6 date there's been no investigator to contact me or ask me 

7 anything about this complaint. 

8 CHAIRMAN BURTON: Senator Lewis. 

9 SENATOR LEWIS: You may have answered the 

10 question. The question was going to be, what was the nature of 

11 the managerial misconduct you were alleging? Was it something 

12 other than racial discrimination? 

13 MR. BRYANT: There's one complaint for racial 

14 discrimination and another complaint alleging violations of 

15 Government Code and the Peace Officer Bill of Rights. 

16 SENATOR LEWIS: What was the nature of those 

17 violations? 

18 MR. BRYANT: Basically writing negative comments 

19 on a peace officer's personnel records or records to be used for 

20 personnel purposes, and maintaining those records without my 

21 knowledge and actually using those records to make adverse 

22 decisions against me. 

23 MR. BARNES: Senator Lewis, could I for just one 

24 second augment what Lieutenant Bryant said? 

25 SENATOR BRULTE : I want to follow up first. 
2 6 MR. BARNES: Yes, sir. 

27 SENATOR BRULTE: It's against the law to have a 

28 personnel file? 


MR. BRYANT: Yes, if s a violation of the 
Government Code. 

CHAIRMAN BURTON: You're supposed to know what 
people put in your personnel file. 

MR. BRYANT: And a peace officer has a right to 
know everything that exists in his personnel file, and you 
cannot make a negative comment about me in writing without me 
knowing about it. 

SENATOR BRULTE: Walk me through that. 

MR. BARNES: The legislative intent was to 
enhance good employer-employee relations. 

SENATOR BRULTE: But walk me through that. 

Whenever somebody puts something in your 
personnel file, that they have to notify you? 

MR. BRYANT: Yes, for instance, if I was to do 
something wrong, and you were to choose to document that and it 
was negative in nature, you would be required to sit me down and 
show me what you intended to place in my personnel file. 

CHAIRMAN BURTON: There's a chance, I guess, for 

MR. BRYANT: For rebuttal, correct. 

SENATOR BRULTE: You mentioned that because 
you've complained, you're sure you're not going to get promoted. 

MR. BRYANT: I'm positive of that. 

SENATOR BRULTE: Everybody that doesn't complain, 
they get promoted? 

MR. BRYANT: Most of the time. And the people 
that assist them in shielding the managerial misconduct get 


1 promoted. 

2 Lieutenant Barnes is in possession of a court 

3 document, a transcript, an official transcript from his trial 

4 where the Associate Warden who was in charge of EEO 

5 investigations at Avenal State Prison, testified that racial 

6 discrimination is not an actionable offense, meaning it's okay. 

7 He was promoted to Chief Deputy Warden. That's how they reward 

8 managerial misconduct. 

9 So, my request, our cases are similar but not the 

10 same. My request today is that you do not confirm Director 

11 Terhune. And if you do, that you request that he be held 

12 accountable for these types of things, and that he formulate 

13 some sort of report to you. 

14 As an employee and as a tax-paying citizen, I 

15 think we're all entitled to answers. In a department this 

16 large, an unanswered complaint is unsatisfactory when they have 

17 people who can write. 

18 CHAIRMAN BURTON: Senator Ayala. 

19 SENATOR AYALA: I totally agree that you folks 

20 should receive due process. 

21 I'm trying to, in my own mind, determine how much 

22 of the information you've given us refers to Mr. Terhune. All 

23 these problems occurred before he was appointed; was it not? 

24 MR. BRYANT: We're not alleging these problems, 

25 or that he perpetrated these problems. 

26 What I'm alleging is that he's aware has chosen 

27 to ignore these complaints. 

28 SENATOR AYALA: Did it happen during his watch? 


MR. BARNES: Sir, the majority/ the lion's share 
of what I have here, I'm trying to point out, happened since 
August of 1997, if I understood when he said when he became the 

Mr. Terhune toured Avenal State Prison while the 
Warden and I were in a trial. We were both there. Why the 
Warden chose to be there every day, I don't know, while I was 
battling for my statutory rights. 

Mr. Terhune never came to check and see why his 
Warden was at trial with one of his lieutenants. 

You mentioned about being someone from the 
military. I was grunt for four years. I'm sure that you 
understand that, as a soldier, you are required to follow what's 
in place whether someone is there or not. And if you are 
leading a fire team, you are responsible for the least 
intelligent person as well as the most intelligent, within 

SENATOR AYALA: I know the chain of command 

What I'd like to know is, now your case was 
settled in court; was it not? 

MR. BARNES: Yes, sir. 

SENATOR AYALA: I got a copy of a check for 
$10,500 that you received. 

MR. BARNES: Sir, I received a FAX — if I could 
clarify that. I received a FAX last night. 

That trial was concluded in October of 1997. I 
had a FAX from the Department's legal team that says a Notice of 


Appeal/ an officially documented Notice of Appeal, appealing the 
judgment, declared under the penalty of perjury. I received a 
FAX last night. 

I have never received a check for the payment, 
for the judgment. 

You cannot appeal the judgment and pay the 
judgment at the same time. 

SENATOR AYALA: This is dated the 10th of 
February of '98. It's a FAX of the check that's mailed out to 
you and to Adam Fairbairn. 

I mean, I understand that the investigation was 
going about the same time as your trial, prior to the trial. 
Then, when the trial started, they ceased the internal 
investigation. They're picking it up now to see if any problems 
exist, and I'm all for that. 

I don't support what you just mentioned happened 
to you. But I don't understand why you should hold this 
gentleman accountable for something that didn't happen on his 

MR. BARNES: Mr. Ayala, I think part of what 
you're articulating is that, see, an agency's like a 
corporation. When something goes well, everyone did it well. 
When something goes wrong, no one's responsible. 

CHAIRMAN BURTON: If I could, is your complaint 
not that he's responsible for the bad things that happened, but 
he did not respond to complaints made about the bad things that 

MR. BARNES: Yes, sir. My complaint is not that 


he is responsible/ and I apologize if I was not clear. 

CHAIRMAN BURTON: That he is now the man, and 
when you complained up the chain of command, that he was there 
and you didn't get a response from him. 

MR. BARNES: Sure. You can't get him on the 
phone; you can't get him through mail. I can't transport myself 
into — 

MR. BRYANT: Anyone or his subordinates. 

SENATOR LEWIS: I'm not sure that we can resolve 
these questions right now and vote on this. Maybe it would be 
worthwhile to put this over for a week. Give the two parties a 
chance to communicate and make sure they're talking to each 

CHAIRMAN BURTON: For vote only? 


CHAIRMAN BURTON: Fine with me. 

Senator Lewis suggested to put it over a week for 
vote only just so that Mr. Terhune and these people, and because 
our Republican colleagues have to leave fairly shortly. 

Are you familiar with anything that we're talking 
about here? 

MR. TERHUNE: Yes, I am familiar with it. 

SENATOR AYALA: Mr. Chairman, if we're just going 
to put it over for a vote only, shouldn't we hear from 
Mr. Terhune now? 

CHAIRMAN BURTON: Yes, exactly. 

Would you comment on the complaints of — thank 
you, gentlemen — the lack of response? And not their 





























complaints/ not the validity, but the fact that nobody seems to 
have responded to them. 

I do think, Lieutenant Barnes, that the appeal 
doesn't have to do with your award. It has to do with the 
attorney's fees. So, in other words, you've gotten your 
damages so to speak, and the appeal, as I understand it, is on 
the issue of the fees for your attorney. So that's what the 
appeal would be. 

MR. BARNES: Sir, I know you want to get to 
Mr. Terhune, but that case was not financed on a contingency 
basis. I financed that lawsuit because there was no other way. 

CHAIRMAN BURTON: But that's not up to us. 

MR. BARNES: And I only wanted to comment having 
to go to court is not why I'm here. 

I'm here that it cost the taxpayers far too much 
money to use the court than our own administrative process. 


Mr. Terhune, could you respond? 

MR. TERHUNE: There is no way in this world that 
I can convince Lieutenant Barnes that it was Friday, about 3:00 
o'clock, when I talked with attorneys. We were talking. And 
finally I heard it all and I said, pay Lieutenant Barnes his 

It was Saturday that the letter, you had sent the 
letter. It was Friday I said, look, pay Lieutenant Barnes the 
money that we owe him as part of the judgment. 

The issue about lawyer's fees, attorney's fees, 
is another issue and to step there — 


CHAIRMAN BURTON: The issue here seems to me, and 
I may be wrong, and I don't want to rehash this whole thing at a 
future time, but it wasn't just like one letter that was got. 

There seems to have been series of complaints 
sent up the line about whatever, mismanagement, malfeasance, 
where there's been no response back. 

Now, I don't know whether it would be, if he 
talks to an Assistant Warden, is it that person's duty to tell 
the Warden? Can somebody shortstop it before it gets to you? 

I think that's what the complaint is. It seems 
to be his only complaint against you, I believe, or at least as 
I heard it, was that he complained about things that he thought 
were real, and it seems to me more real about the operation of 
the institution than himself, and never got a response from 

So, that because you're the top banana, that 
you're the one — 

MR. TERHUNE: No, we did have some people that 
were talking with him. 

I guess if there's anything that I would have 
probably done different, I should have talked with him. 

CHAIRMAN BURTON: Well also, such a paper trail 
that we wouldn't even have the discussion. 

SENATOR HUGHES: Mr. Burton, I just want to ask a 
technical question. 

When is his drop-dead date for the appointment? 
Is it within a week? 

MS. MICHEL: August 20. 






























SENATOR HUGHES: So, I think that we should put 
it over for more than a week because they may not get a chance 
to talk to each other and to iron the things out. 

I don't know, all of this time this thing has 
been festering. I don't know that we're going to resolve it in 
a week. And it concerns me because I want to know how to vote 
because I want to hear the results of their negotiation. I want 
to know about the untimeliness of appealing this at the 11th 
hour when a financial settlement was almost made. 

You know, it puts me in a great dilemma, because 
we're affecting more than one life. We're affecting several 
lives. We're affecting these people, three individuals' 
careers, and I don't know how many other individuals, the three 
that have appeared before us today. 

So, I would say that I don't know in a week that 
I can vote. 

CHAIRMAN BURTON: If I could make a suggestion, 
and I think to me the issue, and Lieutenant, let me tell you, 
bureaucracies fight and appeal every dollar that they've got to 
pay out. Trust me, they are not singling you out on this. I 
mean, you may be singled out on a host of things, that's just 
typical bureaucratic mentality. Don't pay a dime. Let's spend 
$100 million to save a $10,000 check that says we made a 

So, the issue, I believe, and you sort of 
admitted, maybe, I think this could be resolved in a week, is 
that it's something that if it was dealt with, and you weren't 
even there at the beginning, but these seem to be that they had 


some serious complaints that should have been dealt, with either 
like yeah, you're right, or that's the dumbest thing I've ever 
heard in my life, so to speak. 

As you said, maybe you should have talked to him, 
and that 20-minute conservation could have saved some time. 

But, I'd like to know what's wrong with the 
system if somebody who's got three hashmarks — which, you know, 
in World War Two, I knew what that meant. That meant, depending 
on the service, either nine or twelve years service — that made 
a complaint, and it doesn't go up the line for any kind of, not 
action, but response. I think that's the concern that Senator 
Hughes has. 

SENATOR AYALA: Mr. Chairman, I think that it is 
a serious problem we have here. But why should it take more 
than a week? We settle national disputes in a few days. 

I want this to appear on our next agenda so we 
can get this over with. 

Why do you want to drag it? 

CHAIRMAN BURTON: That was Senator Hughes' 

SENATOR AYALA: But he's arguing the point that 
we need more time. Why do you need more than a week? 

CHAIRMAN BURTON: Senator Hughes did that. 
Senator Ayala. 

SENATOR AYALA: I understand that, but why do you 
need more than a week? 

SENATOR HUGHES: He didn't do it. I said I 
needed more time. 


1 SENATOR AYALA: I'm not arguing that point. I 

2 don't agree with you, is what I'm saying. 

3 MR. BARNES: Shall I try to answer him? 


5 I tell you what we're going to do. We're going 

6 to put this over for one week. The staffs can check early on, 

7 but I think you're not going to solve the problems that racism 

8 exists in the institution or anywhere in a week, in a month, or 

9 whatever. 

10 You can solve the problems of the lack of 

11 communication and responsibility in your chain of command and 

12 get some commitments on that. 

13 Mr. Terhune cannot undo whatever has been done. 

14 He can see that whatever was not done before is done, so we will 

15 put this over for a week. And, you know, to the satisfaction of 

16 . the majority of the Members of the Committee, if they aren't 

17 satisfied with what comes up, there's always the possibility of 

18 doing that. 

19 But I agree with Senator Ayala to some point, 

20 that you've had more communication in last threes minute than 

21 you had in the last six months. 

22 So, we will put the matter over. I think it 

23 would behoove you to find out that somebody not bucked something 

24 up the line because they were covering their rear. Or, did it 

25 get it bucked up and you saw it, but you were too busy? Or, by 

26 the time you found out about it and you said, what's this? And 

27 someone says, ah, it's nothing. 

28 But get together and do that. So, this will be 


over until the next meeting. 

MR. BARNES: Yes, sir. 

CHAIRMAN BURTON: Get together and chat like. 

Roberto Vellanoweth, member of the Youthful 
Offender Parole Board. We have the professional and academic 

Do you want to give us either your overview about 
what's been going on there, or what should change. 

I remember during budget hearings and other 
things that Senator Vasconcellos and others had great trouble 
with the Youthful Offender Parole Board. For the life of me, I 
can't remember, but I think what it was is that nobody ever went 
out anywhere. It was a record that would have made New York 

But why don't you just quickly give us your 
thoughts of what's been happening, and maybe what changes you'd 
like to see. Leave the cost out for a minute, and just the 
appropriate changes. 

MR. VELLANOWETH: Senator Burton, congratulations 
on your appointment. 

My name is Roberto Vellanoweth. I'm a member of 
the Youthful Offender Parole Board. 

Committee Members, ladies and gentlemen, I'm here 
before you again. I was here two-and-a-half years ago before 
you for my confirmation for the term that I was finishing for a 
previous Board member. This is actually my first full term 
nomination, and hopefully, my confirmation from the Senate for 
this Youthful Offender Parole Board. 


1 Your question regarding the comments by Senator 

2 Vasconcellos, I was not a part of that, and I think that you're 

3 probably referring to the Youth Authority in terms of the 

4 concerns that were raised with Youth Authority but not the 

5 Youthful Offender Parole Board. 

6 CHAIRMAN BURTON: I thought it was you. You 

7 could be righter than I am, so no problem. 

8 MR. VELLANOWETH: My background, my education, my 

9 experience, I think, stems from coming from Mexico at a very 

10 young age, and having learned to survive in the barrios of 

11 Sacramento, I come here before you. 

12 I have my whole family. I think they're here in 

13 support. My wife, Cristina, my mother, Rosemary. 

14 MR. VELLANOWETH: Senator Jim Nielsen's also here 

15 in support. Thank you of being here. Senator. 

16 All the people I think that you see here, most of 

17 them are here in my support. I don't think I have any 

18 opposition. 

19 But I think the most important thing that you 

20 ought to learn or to know about me is the fact that when we make 

21 decisions in the Youthful Offender Parole Board, all my 

22 colleagues, when we make a decision, we take each individual 

23 case individually, because there's a lot of facts that we have 

24 to absorb very rapidly when you have 22 cases that you have to 

25 go through. Obviously, in my tenure, I've probably seen over 

26 10,000 cases since I've been there. 

27 Each case, you have to have compassion. You have 

28 to have also the understanding of the victims and what has 


happened to those victims. And hopefully, we have an inner gut 
feeling about that individual ward, whether or not they're going 
to be ready for a parole consideration, which, in my opinion, 
that's the most important decision we make. 

CHAIRMAN BURTON: This is a question, and it's a 
tough one. 

You have a victim — probably be more victim than 
the families of victims, or either way — and you look at the 
ward. And what ever it is that the ward did, you look at that 
ward. You look at the background. You look at something, and 
you would just say that this person, you know, deserves a shot. 

And by and large, except in rare occasions either 
the victims, or the family of the victims, really, I think than 
the victims, but they will say don't do this because, and then 
it will get revisited, the situation that brought the ward 

MR. VELLANOWETH: That happens. 

CHAIRMAN BURTON: And that's like a more 
determining factor as opposed to the fact that this person, if 
no victim showed up, the crime's the same, the facts are the 
same, but a victim shows up, the odds are the individual 
probably doesn't get let out. And if no victim shows up, you 
know, it increases the chance. 

MR. VELLANOWETH: I understand what you're, I 
think, trying to convey. 

CHAIRMAN BURTON: It's a question. I have no 
other conveyance. 

MR. VELLANOWETH: The impact of the victim, of 


1 course, or the parents, or the family of a victim, and 

2 especially when they bring and they revisit the case obviously 

3 has some impact on the Board members, because when you see a 

4 gruesome crime, a murder scene, and the victims bring that back 

5 to the forum — 

6 CHAIRMAN BURTON: Wouldn't that be in the file? 

7 MR. VELLANOWETH: It's typically, typically not 

8 in the file. 

9 CHAIRMAN BURTON: The file that you have on Ward 

10 A doesn't say, went into somebody's home, slashed three people 

11 with a knife and cut the wedding ring off the finger? 

12 MR. VELLANOWETH: Absolutely. That is in the 

13 file. 

14 CHAIRMAN BURTON: What isn't in it? 

15 MR. VELLANOWETH: What I was talking about is, . 

16 when you see a video tape that a victim brings and that shows 

17 what happened in the scene, that's not in the file. 

18 The actual crime is definitely in the file, and 

19 it's very well documented in that file. 

20 CHAIRMAN BURTON: It would seem to me that the 

21 crime more or less speaks for itself. I don't know, I mean, 

22 who's present to video tape a crime? 

23 MR. VELLANOWETH: Actually, the video tape that I 

24 saw in the last few years was the video tape of the newscasters 

25 actually photographing the scene, showing the victims. 

26 CHAIRMAN BURTON: Showing the crime scene? 

27 MR. VELLANOWETH: Showing the crime scene and the 

28 actual victim, because they were still there. 


1 SO/ those were brought to one of our hearings, 

2 and it does have an impact. You asked me whether or not it had 

3 an impact. 

4 CHAIRMAN BURTON: No, I know it does. I know it 

5 has an impact, which is the thing of it. 

6 I don't know how somebody, whenever you have a 

7 family or victim there who's, like, bringing this up could ever 

8 do -- anyway, I have one question. Susan Wallace said you're 

9 okay, although I never listen to her anyway. I thought she 

10 retired. 

11 The counties have to pay a piece of keeping 

12 certain people when they send them to the Youth Authority; 

13 right? 


15 CHAIRMAN BURTON: Should they have a say in the 

16 length of stay, or once they decide to lateral them off to you, 

17 then they forfeit that right? 

18 MR. VELLANOWETH: What happens normally, the 

19 county, the judge has a sentence, a certain time frame. 

20 Sometimes they give a murderer life, and unfortunately, as you 

21 know, youthful offenders are basically have a jurisdiction until 

22 they're 25. 

23 CHAIRM7\N BURTON: Let's not talk about murderers. 

24 Let's talk about — 

25 MR. VELLANOWETH: Car thieves. 

2 6 CHAIRMAN BURTON: Well, semi-normal people. 

27 Whenever we talk about anything, we bring up the axe murderers. 

28 I mean, there's too many of them, but they really aren't that 






























big a percentage. 

MR. VELLANOWETH: Well, we can talk about petty 
theft/ and a number of petty thefts where they've got Category 
Seven offenders. That's the lowest category. 

Then what happens is, we look at all of the facts 
what the jurisdictions are that we have. Sometimes we're 
limited by the time that the judge gives them. 

CHAIRMAN BURTON: The question was like, should 
the counties have greater say in the length of time, do you 

MR. VELLANOWETH: Financially, economically, 
obviously they have an impact. The crime determines the time. 
So, they have a say when the county actually gives us the ward. 
They already have established the time. 

CHAIRMAN BURTON: Well, the judge. 

MR. VELLANOWETH: The judge in that county. 

CHAIRMAN BURTON: The judge for the State of 
California. No, a juvie judge is probably not a judge for the 
state — yes, it's still a judge for the State of California, in 
and for the City and County of San Francisco. So, it's State's 
giving you the time. 

Questions of Members of the Committee? 

SENATOR HUGHES: Just a quick one. 

We have new and experimental programs, such as 
Mother Infant Care Program and Young Men as Fathers. 

Do you think these programs are making any 
difference, or are they just an unnecessary add-on? 

MR. VELLANOWETH: My opinion on those programs is 



First, Young men as Fathers gives the wards 
additional tools to function back in society. These tools have 
never — in a lot of occasions/ they have not been afforded to 
them in their own home. Most of these wards come from 
one-parent families, and typically it's a mother that is in that 
home. A lot of times these mothers are also drug addicts or 
have been in prison, and they come from very dysfunctional types 
of environments. 

What happens is, if we don't offer these young 
men and women the opportunity to learn what it means to be a 
parent, then obviously we are remiss, and our whole purpose is 
to rehabilitate. That's what the Youthful Offender Parole Board 
looks at, whether or not they've been rehabilitated and to what 

So, I do believe that, in answer to your 
question. Senator Hughes, that we definitely need to invest 
those dollars in those rehabilitative programs. 

SENATOR HUGHES: One last question. 

When a ward comes before the Board for parole 
consideration, how does the Board assess whether they, he or 
she, has been rehabilitated or is no longer a threat to the 

MR. VELLANOWETH: The Board really does not make 
that assumption. It's made by the Youth Authority. 

They bring to the Board a recommendation based on 
all of the programs that are given to that ward by the Youthful 
Offender Parole Board in their initial hearings and subsequent 


1 hearings, because it is a lengthy process to get a young ward 

2 ready for parole. 

3 Once they have completed all those programs, the 

4 Youthful Offender Parole Board member or members, depending on 

5 whether it's a panel or a full board, or a full board en banc 

6 type of hearing, determines whether that individual at that 

7 particular point in time is still a danger to society. And that 

8 determination is made for a number of factors: their 

9 performance within the Youth Authority; the number of 

10 disciplinary hearings that they've had; and whether or not they 

11 really behaved during their tenure there. 

12 Then we make a determination to give them an 

13 opportunity on the parole phase of the program. That's just one 

14 facet. 

15 SENATOR HUGHES: Mr. President, I have no further 

16 questions. 

17 CHAIRMAN BURTON: Thank you. 

18 Any further questions from Members of the 

19 Committee? Senator Ayala. 

20 SENATOR AYALA: One question. 

21 We have these youthful offenders at YTS up till 

22 they're 25 years old? 

23 MR. VELLANOWETH: It's 21-25 by statute. 

24 SENATOR AYALA: I cannot understand people who 

25 are over 21, 22 in a Youth Authority. 

2 6 You know, when we were 21, 22, 23, we were out 

27 there. 

28 MR. VELLANOWETH: We were men. 


SENATOR AYALA: We didn't have to be with the 
young people any more. 

It seems to me these people may be corrupting the 
younger element. You know, the bad apple in the basket there. 

Would you recommend/ or have any idea whether we 
should lower that age level so that people that are committing 
vicious crimes, youthful offenders, go to prison not to the 

MR. VELLANOWETH: Senator Ayala, there are in the 
Youth Authority institutions, different institutions for 
different ages. For example, at O.H. Close, we have the very, 
very young wards that are unsophisticated, and they go to that 
particular institution. 

The ones that are older and more sophisticated 
and criminally minded, more so than theses young youth, are sent 
to a high level of security type institution, like YTS, for 
example, as you mentioned before, or in Sacramento we have NRCC, 
which is the entry point, but those are very typical low level 
criminals. And then at Chaderjian School, that's where the real 
heavy-duty type of criminal go, and they're the ones that are 

SENATOR AYALA: Who makes the determination 
whether they go to Youth Authority or a men's prison? Who makes 
that determination when they're over 21? 

MR. VELLANOWETH: The judge makes it, unless 
they're unamenable for treatment, then the recommendation is 
made by the Youth Authority to send them to prison. 

SENATOR AYALA: You have the case in the Chino 





YTS where that so-called youthful offender murdered that 


SENATOR AYALA: And that individual was 23, 24, 
25. They should have kicked his you-know-what up to the prison a 
long time ago before that. 

MR. VELLANOWETH: I concur with you. 

CHAIRMAN BURTON: What is the pleasure of the 

SENATOR AYALA: Move the confirmation. 

CHAIRMAN BURTON: Moved by Senator Ayala. Call 
the roll. 

SECRETARY WEBB: Senator Ayala. 


SECRETARY WEBB: Ayala Aye. Senator Brulte. 


SECRETARY WEBB: Brulte Aye. Senator Hughes. 


SECRETARY WEBB: Hughes Aye. Senator Lewis. 


SECRETARY WEBB: Lewis Aye. Senator Burton. 


SECRETARY WEBB: Burton Aye. Five to zero. 

MR. VELLANOWETH: Senator Burton, just one 
comment, if I may. 

I had a couple of speakers who wanted to come 
before you. 

CHAIRMAN BURTON: Have them identify themselves. 


We didn't want to lose a quorum and have to come back. 

MR. VELLANOWETH: Thank you for the confirmation. 

Mario ObledO/ President of the California 
Coalition of Hispanic Organizations. 

CHAIRMAN BURTON: Mario, how are you? 

MR. OBLEDO: Fine, thank you. 

Mr. Chairman and Members of the Committee — 

SENATOR HUGHES: Mr. Obledo, had he known it was 
you, he would have come over and kissed you, too. 

CHAIRMAN BURTON: Congratulations on your great 

MR. OBLEDO: Thank you very much. Senator. 

Mr. Chairman, Members of the Committee, my name 
is Mario Obledo, President of the California Coalition of 
Hispanic Organizations. 

We are here to endorse Mr. Roberto Vellanoweth 
for reappointment to the Youthful Offender Parole Board. He is 
a fair person. He is a person of integrity and a dedicated 
public servant. 

If I may speak on behalf of Bill Garcia, who's 
the Legislative Advocate the American GI Forum, a 
Mexican-American veterans' organization, he had to leave, but he 
asked me to inform the Committee of their endorsement as well. 

If I can be so presumption, I think 
Mr. Vellanoweth would have the full support of the entire 
Hispanic community in the State of California. 

Thank you. 


1 CHAIRMAN BURTON: Had we known you were a 

2 supporter, we could have had a shorter question period. 

3 MR. WILHOIT: Mr. Chairman, my name is Doug 

4 Wilhoit, W-i-1-h-o-i-t. I'm Vice Chairman of YOPB, and I bring 

5 you greetings from our Chairman, Senator Robert Presley, who's 

6 in Southern California doing hearings right now. 

7 The only reason I'm right now is to speak on 

8 behalf of Roberto. He promised me dinner if I'd be here, so I 

9 have to earn my dinner tonight. 

10 CHAIRMAN BURTON: Presley didn't promise you 

11 dinner. 

12 MR. WILHOIT: A bottle of wine, no. 

13 Very briefly, I think that the vote's already 

14 been taken, and I'm very pleased to see that Roberto has the 

15 support of this body. 

16 I've had 31 years of experience in government, 12 

17 years as a police officer, 16 as a county supervisor. We had a 

18 lot of discussions during the budget years ago. And then the 

19 last two-and-a-half years on the Board. 

20 I can say not only have I gained a professional 

21 colleague, but a very dear friend. Roberto does a fine job and 

22 adds a great deal. 

23 The Board would like to have him there for 

24 another four years. 

25 CHAIRMAN BURTON: You have very fine people 

26 vouching for you. 

27 MR. VELLANOWETH: Thank you. Senator. Thank you 

28 all, and I appreciate your support. 


CHAIRMAN BURTON: Congratulations to your 

MR. VELLANOWETH: Thank you. 
[Thereupon. This portion of the 
Senate Rules Committee hearing was 
terminated at approximately 4:15 P.M.] 
— ooOoo — 































I, EVELYN J. MIZAK, a Shorthand Reporter of the State 
of California, do hereby certify: 

That I am a disinterested person herein; that the 
foregoing transcript of the Senate Rules Committee hearing was 
reported verbatim in shorthand by me, Evelyn J. Mizak, and 
thereafter transcribed into typewriting. 

I further certify that I am not of counsel or 
attorney for any of the parties to said hearing, nor in any way 
interested in the outcome of said hearing. 

IN WITNESS WHEREOF, I have hereunto set my hand this 
day of N^^e^^^t^-^- ^^-t-*?^^ / 1998. 


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